10-02-2012 City Council Study Session Packet
City of Grand Island
Tuesday, October 2, 2012
Study Session Packet
City Council:
Larry Carney
Linna Dee Donaldson
Scott Dugan
Vaughn Minton
John Gericke
Peg Gilbert
Chuck Haase
Mitchell Nickerson
Bob Niemann
Kirk Ramsey
Mayor:
Jay Vavricek
City Administrator:
Mary Lou Brown
City Clerk:
RaNae Edwards
7:00 PM
Council Chambers, City Hall
100 East 1st Street
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City of Grand Island Tuesday, October 2, 2012
Call to Order
This is an open meeting of the Grand Island City Council. The City of Grand Island abides by the Open
Meetings Act in conducting business. A copy of the Open Meetings Act is displayed in the back of this room
as required by state law.
The City Council may vote to go into Closed Session on any agenda item as allowed by state law.
Invocation
Pledge of Allegiance
Roll Call
A - SUBMITTAL OF REQUESTS FOR FUTURE ITEMS
Individuals who have appropriate items for City Council consideration should complete the Request for
Future Agenda Items form located at the Information Booth. If the issue can be handled administratively
without Council action, notification will be provided. If the item is scheduled for a meeting or study
session, notification of the date will be given.
B - RESERVE TIME TO SPEAK ON AGENDA ITEMS
This is an opportunity for individuals wishing to provide input on any of tonight's agenda items to reserve
time to speak. Please come forward, state your name and address, and the Agenda topic on which you will
be speaking.
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City of Grand Island
Tuesday, October 2, 2012
Study Session
Item C1
Grand Island Fire Department Pinning Ceremony for Fire Chief
Cory Schmidt
Mayor Vavricek will present Cory Schmidt with his Fire Chief badge at a pinning ceremony. Pinning
ceremonies are part of the Fire Department's tradition when a member is promoted.
Staff Contact: Mayor Jay Vavricek
Grand Island Study Session - 10/2/2012 Page 3 / 98
City of Grand Island
Tuesday, October 2, 2012
Study Session
Item X1
Discussion Concerning Renewal of City's Cable Franchise
Agreement with Charter Communications - City Legal
Department
Staff Contact: Robert J. Sivick, City Attorney
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Council Agenda Memo
From:Robert J. Sivick, City Attorney
Meeting:October 2, 2012
Subject:Consideration of the Renewal of the City’s Cable
Franchise Agreement with Charter Cable
Item #’s:1
Presenter(s): Robert J. Sivick, City Attorney
Background
On March 7, 1966 the Grand Island City Council (Council) approved Ordinance 4238
which set forth the City of Grand Island’s (City) laws and procedures for awarding cable
television franchise agreements. On April 11, 1966 a twenty-five year franchise was
awarded to TCI Cablevision of Nebraska, Inc. (TCI). This franchise agreement was
renewed on February 10, 1992 for a fifteen year period. TCI’s cable television assets
were later acquired by CCVI Operating, LLC d/b/a Charter Communications (Charter).
March 7, 2006 the Council approved Resolution 2006-78 which approved a contract with
the law firm of Moss & Barnett of Minneapolis for legal and consulting service related to
negotiations with Charter for the renewal of its cable franchise agreement with the City.
In August, 2011, at the request of the Administration, the City Attorney began reviewing
the status of negotiations between the City and Charter. Progress had been slow due in
part to Charter’s Chapter 11 bankruptcy filing in 2009.
The City Attorney made contact with representatives of Moss & Barnett and Charter to
express the City’s disappointment in the slow progress of negotiations and its desire for
completion. The City Attorney also began personally participating in negotiations on
behalf of the City. An agreement between the City and Charter has been reached and is
presented to the Council for its review. The Administration plans to bring the cable
franchise agreement before the Council at its meeting on October 9, 2012 for
consideration and possible approval.
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Discussion
Representatives of the City and Charter negotiated vigorously but professionally on
behalf of their respective clients. The City sought to improve its position under the terms
of the agreement. Charter sought to maintain control over its operations and costs as a
result of the increased competition faced by the cable television industry from satellite
and internet content providers.
In broad terms, the proposed agreement to be reviewed by the Council is for a period of
fifteen years. It will increase the number of Public, Educational, and Government (PEG)
channels from two to three. It sets the PEG fee at forty cents per subscriber, per month.
It increases the number of governmental facilities and schools receiving free cable
television service. It sets the franchise fee for the City at 5%. Finally, it addresses and
strengthens customer service standards for Grand Island citizen subscribers.
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4800 WELLS FARGO CENTER | 90 South Seventh Street Minneapolis, MN 55402
P:612-877-5000 F:612-877-5999 W:moss-barnett.com!Unexpected End of Formula
MEMORANDUM
To:Robert Sivick, Grand Island City Attorney
From:Brian T. Grogan, Esq.
Date:August 31, 2012
Re:Cable Television Franchise – Charter Communications
Introduction
Charter Communications (“Charter”) provides cable service to residents of the City of Grand
Island, Nebraska (“City”) on its own infrastructure under the terms of non-exclusive franchise
agreements dated February 10, 1992. The City, as local franchising authority, has the right to
issue cable franchise agreements, and to oversee and regulate the cable operator’s compliance
with the franchise provisions. The term of the existing franchise agreements expired on or
about February 10, 2007.
The City initiated the process of identifying the cable-related needs and interests and evaluating
the existing cable system operated by Charter. In order to accomplish these tasks the City
approved the following studies:
Franchise Fee Payment Desk Review: In April 2006, Moss & Barnett began the process to
conduct a review of the financial history and financial qualifications of Charter Communications,
a review of the company’s financial projections, and a review of the past franchise fees paid by
the company to the City. Moss & Barnett conducted a detailed franchise fee review to ensure
that payments made by Charter under the franchise were accurately and thoroughly remitted.
Moss & Barnett issued its findings and recommendations in its report to the City of Grand
Island, dated August 17, 2006.
Community Needs Ascertainment: The City contracted with Ms. Susan Bisno Massel to
ascertain the public’s future cable-related needs and interests as they relate to PEG
programming and facilities, including interviews and site visits with selected community
representatives, focus groups and public meetings. Ms. Massel visited the City for this on-site
phase on June 15, 2006, and submitted her final report of findings and recommendations for
the City of Grand Island on August 17, 2006.
Telephone Survey: A residential needs assessment was conducted in the City which included a
telephone survey of randomly selected Charter cable subscribers and non-subscribers. The City
also established a phone line and email address to take public comment. The City contracted
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Robert Sivick, Grand Island City Attorney
August 31, 2012
Page 2
!Unexpected End of Formula
with Dr. Constance Ledoux Book to prepare the telephone survey instrument and Issues and
Answers, Inc. to perform the calling. Dr. Book reviewed and analyzed the results of the survey
and prepared a detailed report for the City, dated September 2006.
Background
The City prepared a draft Cable Television Franchise Agreement (“Franchise”), December 21,
2006, and sent it to Charter requesting a written response no later than January 19, 2007.
Charter thereafter contacted the Moss & Barnett requesting until February 2, 2007 to submit its
response to the draft Franchise. Charter submitted its written response on March 2, 2007. On
March 21, 2007, City staff and I reviewed Charter’s written response to the draft Franchise.
In 2008 the City was close to a deal with Charter – then Charter went into bankruptcy and
stopped negotiating until they emerged from that process in 2010. The bankruptcy process
resulted in a substantial reorganization of the management of Charter. During all of the stops
and starts in negotiations the City held firm on the issues of greatest importance but the City
experienced a moving target on the issues presented by Charter. In early 2011, Charter
brought in a new management team and outside legal counsel to resume negotiations and in
mid 2011, the new City Attorney actively participated in franchise negotiations and agreement
was reached between the parties on an acceptable franchise document.
Final Results
15 year term
3 PEG Channels, initially Channels 6 and 12.
Live cablecasting capability from City Hall, Grand Island TV studio and College Park (includes
Doane College and Central Community College).
PEG Fee = $.40 per subscriber, per month and payable to the City on a quarterly basis.
Free service provided to the institutions listed in attachment to franchise.
5% franchise fee payable to the City on a quarterly basis.
Strong customer service standards.
~ END OF MEMORANDUM ~
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CABLE TELEVISION FRANCHISE AGREEMENT
FOR THE
CITY OF GRAND ISLAND, NEBRASKA
AND
CCVI OPERATING LLC,
D/B/A CHARTER COMMUNICATIONS
August 8, 2012
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TABLE OF CONTENTS
I.DEFINITIONS ........................................................................................................2
II.GRANT OF AGREEMENT....................................................................................2
III.RIGHT OF CITY TO ISSUE AGREEMENT ........................................................2
IV.EFFECTIVE DATE OF AGREEMENT.................................................................2
V.TERM ......................................................................................................................2
VI.AGREEMENT NONEXCLUSIVE.........................................................................2
VII.SERVICE AREA AND LINE EXTENSIONS .......................................................2
VIII.SYSTEM .................................................................................................................2
IX.TECHNICAL STANDARDS .................................................................................2
X.SYSTEM DESIGN AND CAPACITY ...................................................................2
XI.GENERAL PROVISIONS ......................................................................................2
XII.SUBSCRIBER RIGHTS AND COMPLAINTS.....................................................2
XIII.EQUAL OPPORTUNITY.......................................................................................2
XIV.AGREEMENT RENEWAL ....................................................................................2
XV.FRANCHISE FEE...................................................................................................2
XVI.REGULATION, RATES, AND CHARGES ..........................................................2
XVII.CONSTRUCTION PROVISIONS..........................................................................2
XVIII.INSURANCE AND BONDS OR OTHER SURETY PROVISIONS....................2
XIX.PERFORMANCE GUARANTEE ESCROW; AND LIQUIDATED DAMAGES 2
XX.TERMINATION .....................................................................................................2
XXI.REMOVAL OF CABLE SYSTEM ........................................................................2
XXII.TRANSFER OF OWNERSHIP OR CONTROL....................................................2
XXIII.PERIODIC REEVALUATION AND RENEGOTIATIONS .................................2
XXIV.RIGHTS OF INDIVIDUALS..................................................................................2
XXV.COOPERATION.....................................................................................................2
XXVI.WAIVER .................................................................................................................2
XXVII.BOOKS AND RECORDS ......................................................................................2
XXVIII.CUMULATIVE RIGHTS .......................................................................................2
XXIX.COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS .....................2
XXX.NOTICES ................................................................................................................2
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XXXI.CAPTIONS..............................................................................................................2
XXXII.INDEMNIFICATION .............................................................................................2
XXXIII.GOVERNMENTAL IMMUNITY ..........................................................................2
XXXIV.FORCE MAJEURE.................................................................................................2
XXXV.TIME IS OF THE ESSENCE..................................................................................2
XXXVI.CONSTRUCTION OF AGREEMENT ..................................................................2
XXXVII.NO JOINT VENTURE .........................................................................................2
XXXVIII.ENTIRE AGREEMENT......................................................................................2
XXXIX.ACTIONS OF THE CABLE OPERATOR.............................................................2
XL.SEVERABILITY ....................................................................................................2
ATTACHMENT A - CUSTOMER SERVICE STANDARDS ............................................A-2
ATTACHMENT B - FRANCHISE FEE PAYMENT WORKSHEET.................................B-2
ATTACHMENT C - FREE SERVICE TO PUBLIC BUILDINGS .....................................C-2
ATTACHMENT D - NON-DISCLOSUREAGREEMENT .................................................D-2
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AGREEMENT
THIS AGREEMENT (“Agreement”) is made and entered into as of this day of
, 2012, by and between the City of Grand Island, Nebraska, (hereinafter referred
to as the “City”) and CCVI Operating LLC, d/b/a Charter Communications (hereinafter referred
to as the “Cable Operator”).
WHEREAS, the City, pursuant to Chapter 9 of the Grand Island City Code, is authorized
to grant one (1) or more nonexclusive, revocable, agreements to construct, reconstruct, operate,
and maintain a cable communication system within the City; and
WHEREAS, pursuant to Chapter 9 of the Grand Island City Code and in accordance with
Section 626 of the Cable Communications Policy Act of 1984, the Cable Operator is agreeable to
providing such services to the City and has made application to the City for renewal of its
existing agreement; and
WHEREAS, the City finds that the Cable Operator has substantially complied with the
material terms of the existing agreement under applicable laws, and that the financial, legal and
technical ability of the Cable Operator is sufficient to provide services, facilities and equipment
necessary to meet the future cable-related needs of the community, and
WHEREAS, the City Council wishes to grant to the Cable Operator and the Cable
Operator wishes to accept the terms and conditions herein set forth for the use of City owned
rights-of-way, of City owned easements, and of rights-of-way and access easements dedicated
and accepted for public use by the City in installing and operating a Cable System in the City.
WHEREAS, the City, after public proceedings and due evaluation, has determined that it
is in the best interest of the City and its residents to grant a new franchise agreement to the Cable
Operator for the term herein provided.
WHEREAS, the City and Cable Operator have complied with all federal and State-
mandated procedural and substantive requirements pertinent to this franchise renewal;
NOW, THEREFORE, IN CONSIDERATION of the renewal of the franchise pursuant to
this Agreement, the Cable Operator hereby agrees to comply with the provisions of this
Agreement and Chapter 9 of the Grand Island City Code. The City hereby grants a franchise as
hereinafter set forth:
I.DEFINITIONS
The following terms, phrases, words, and abbreviations shall have the meanings ascribed to them
below. When not inconsistent with the context, words used in the present tense include the
future tense, words in the plural number include the singular number, and words in the singular
number include the plural number:
A.“Agreement” shall mean the initial authorization or renewal thereof, issued by the
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City, whether such authorization is designated as an agreement, permit, license, resolution,
contract, certificate, or otherwise, which authorizes the construction or operation of the Cable
System.
B.“Applicable Law” means any law, statute, charter, ordinance, rule, regulation,
code, license, certificate, franchise, permit, writ, ruling, award, executive order, directive,
requirement, injunction (whether temporary, preliminary or permanent), judgment, decree or
other order issued, executed, entered or deemed applicable by any governmental authority.
C.“Basic Cable Service” means any service tier which includes the lawful
retransmission of local television broadcast signals and any public, educational, and
governmental access programming required by the Agreement to be carried on the basic tier in
analog and/or digital format. Basic Cable Service as defined herein shall be consistent with 47
U.S.C. § 543(b)(7).
D.“Cable Act” mean the Cable Communications Policy Act of 1984, as amended,
the Cable Television Consumer Protection and Competition Act of 1992, the
Telecommunications Act of 1996 and any amendments thereto and any future cable television
legislation.
E.“Cable Service” or “Service” means (A) the one-way transmission to Subscribers
of (i) Video Programming or (ii) Other Programming Service, and (B) Subscriber interaction, if
any, which is required for the selection or use of such Video Programming or Other
Programming Service. Cable Service as defined herein shall be consistent with the definition set
forth in 47 U.S.C. § 522(6).
F.“Cable System” or “System” means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service which includes Video Programming and which is provided to
multiple Subscribers within a community, but such term does not include:
(1)a facility that serves only to retransmit the television signals of one or
more television broadcast stations;
(2)a facility that serves Subscribers without using any public Right-of-Way;
(3)a facility of common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. § 201 et seq., except that such facility shall be considered a Cable
System (other than for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used
in the transmission of Video Programming directly to Subscribers, unless the extent of
such use is solely to provide interactive on-demand services;
(4)an open video system that complies with 47 U.S.C. § 573; or
(5)any facilities of any electric utility used solely for operating its electric
utility systems.
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Cable System as defined herein shall be consistent with the definition set forth in 47
U.S.C. § 522(7).
G.“Channel” or “Cable Channel” means a portion of the electromagnetic frequency
spectrum which is used in a Cable System and which is capable of delivering a television
Channel as defined by the FCC. Cable Channel as defined herein shall be consistent with the
definition set forth in 47 U.S.C. § 522(4).
H.“City” means the City of Grand Island, Nebraska or the lawful successor,
transferee, or assignee thereof.
I.“Converter” means an electronic device which converts signals to a frequency
acceptable to a television receiver of a Subscriber.
J.“Downstream” shall mean signals originating at the Headend or hubs and
transmitted to Subscribers.
K.“Drop” means the cable that connects the ground block on the Subscriber’s
residence to the nearest feeder cable of the System.
L.“FCC” shall mean the Federal Communications Commission or successor
governmental entity thereto.
M.“Franchise Fee” includes any tax, fee, or assessment of any kind imposed by the
City or other governmental entity on Cable Operator or Subscriber, or both, solely because of
their status as such. It does not include any tax, fee, or assessment of general applicability
(including any such tax, fee, or assessment imposed on both utilities and cable operators or their
services but not including a tax, fee, or assessment which is unduly discriminatory against cable
operators or cable Subscribers); capital costs which are required by the Agreement to be incurred
by Cable Operator for public, educational, or governmental access facilities; requirements or
charges incidental to the awarding or enforcing of the Agreement, including payments for bonds,
security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or
any fee imposed under Title 17 of the United States Code. Franchise Fee defined herein shall be
consistent with the definition set forth in 47 U.S.C. § 542(g).
N.“Gross Revenues” means any and all revenue derived by Cable Operator from the
operation of its Cable System to provide Cable Service within the City including, but not limited
to, 1) all Cable Service fees, 2) Franchise Fees, 3) late fees and returned check fees, 4)
Installation and reconnection fees, 5) upgrade and downgrade fees, 6) local, state and national
advertising revenue, 7) home shopping commissions, 8) equipment rental fees, and 9) guide
revenue. The term “Gross Revenue” shall not include bad debts or any taxes or fees on Services
furnished by Cable Operator imposed upon Subscribers by any municipality, state or other
governmental unit, including the FCC regulatory fee, credits, refunds and any amounts collected
from Subscribers for deposits, PEG fees or PEG support consistent with Applicable Law. City
and Cable Operator acknowledge and agree that Cable Operator will maintain its books and
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records in accordance with generally accepted accounting principles (GAAP).
O.“Headend” shall mean the facility, including antennas and associated electronics
which receives, controls, and switches the electronic information transmitted over the Cable
System.
P.“Installation” means any connection of the System from feeder cable to the point
of connection including Standard Installations and custom Installations with the Subscriber
Converter or other terminal equipment.
Q.“Normal Business Hours” means those hours during which most similar
businesses in City are open to serve Subscribers. In all cases, “Normal Business Hours” must
include some evening hours, at least one (1) night per week and/or some weekend hours.
R.“Normal Operating Conditions” means those Service conditions which are within
the control of Cable Operator. Those conditions which are not within the control of Cable
Operator include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those conditions which
are ordinarily within the control of Cable Operator include, but are not limited to, special
promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and
maintenance or upgrade of the Cable System. Normal Operating Conditions as defined herein
shall be consistent with the definition set forth in 47 C.F.R. § 76.309.
S.“Other Programming Service” means information that a cable operator makes
available to all Subscribers generally. Other Programming Services as defined herein shall be
consistent with the definition set forth in 47 U.S.C. § 522 (14).
T.“PEG” means public, educational and governmental.
U.“Person” is any Person, firm, partnership, association, corporation, company,
limited liability entity, excluding the City, or other legal entity.
V.“Service Area” means the present boundaries of the City, and shall include any
additions thereto by annexation or other legal means so that it covers both current and future
areas.
W.“Service Interruption” means the loss of picture or sound on one (1) or more
Cable Channels. Service Interruption as defined herein shall be consistent with the definition set
forth in 47 C.F.R. § 76.309.
X.“Standard Installation” means any residential or commercial Installation which
can be completed using a Drop of one hundred twenty-five (125) feet or less.
Y.“Street” means the surface of and the space above and below any public Street,
road, highway, lane, path, alley, court, sidewalk, boulevard, parkway, drive or other easement
now or hereafter held by the City. No reference in this Agreement to a “Street” shall be deemed
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to be a representation or guarantee by the City that its interests or other rights in such property
are sufficient to permit its use for the installation and maintenance of a Cable System, and the
Cable Operator shall be deemed to gain only those rights which the City has the undisputed right
and power to give.
Z.“Subscriber” means any Person who receives broadcast programming distributed
by a Cable System and does not further distribute it. Subscriber as defined herein shall be
consistent with the definition set forth in 47 C.F.R. § 76.5(ee).
AA.“Upstream” shall mean the transmission of signals through a Cable System from
Subscribers to the Headend or hubs.
BB.“Video Programming” means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
II GRANT OF AGREEMENT
A.The City hereby grants to the Cable Operator, subject to the terms and conditions
of this Agreement, a nonexclusive agreement which authorizes the Cable Operator to construct,
operate and maintain a Cable System and offer Cable Service in, along, among, upon, across,
above, over, under, or in any manner connected with Streets within the Service Area and for that
purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over,
under, upon, across, or along any Street and all extensions thereof and additions thereto, such
wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances,
attachments, and other related property or equipment as may be necessary or appurtenant to the
Cable System. Provided, this grant does not authorize the provision of non-Cable Services
without requisite City approval if an ordinance or local law permits or requires same unless City
authority is pre-empted by federal or state law or regulation. In the event that at any time pre-
emption of City authority ceases, or if City approval is otherwise permitted or required, then City
approval will be required if local law permits or requires same.
B.This Agreement is a contract negotiated in good faith by the parties and intended
by both parties to govern the relationship between the parties; neither party may take any
unilateral action that materially changes the explicit mutual promises and covenants contained
herein. Any changes, modifications or amendments to this Agreement must be made in writing,
signed by the Cable Operator and the City. To the extent consistent with the foregoing, this
Agreement is subject to and the Cable Operator agrees to comply with the lawful and non-
discriminatory provisions of Grand Island City Code and other ordinances, statutes and
regulations now in effect or hereafter made effective. Any conflict between this Agreement and
the Multi-Channel Service Providers Regulatory Ordinance codified at Chapter 9 of the City
Code as may be amended, shall be resolved in favor of this Agreement. Moreover, the specific
terms of this Agreement will govern the parties in all cases where parallel regulation may also
exist in Chapter 9 of the City Code. Subject to the foregoing, the Cable Operator acknowledges
that its rights hereunder are subject to the police powers of the City to adopt and enforce lawful
and nondiscriminatory ordinances necessary to the health, safety and welfare of the public and
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nothing in this Agreement shall be deemed to modify or reduce the City’s lawful police powers.
III RIGHT OF CITY TO ISSUE AGREEMENT
The Cable Operator acknowledges and accepts the legal right of the City to issue this
Agreement on the date of grant thereof. The Cable Operator agrees that this Agreement was
granted pursuant to processes and procedures consistent with Applicable Law.
IV EFFECTIVE DATE OF AGREEMENT
This Agreement shall be effective when approved by the City Council in accordance with
Applicable Law and when the Cable Operator files its written acceptance of this Agreement and
agreement to be bound by the terms herein with the City Clerk. If such acceptance is not filed
within sixty (60) days after adoption by the City Council, this Agreement shall be void and of no
force or effect. The grant of this Agreement shall have no effect on the Cable Operator’s duty
under the prior agreement or any ordinance in effect prior to the effective date of this Agreement
to indemnify or insure the City against acts and omissions occurring during the period that the
prior agreement was in effect subject to Applicable Law regarding statutes of limitation.
V TERM
The term of this Agreement shall then be for a period of fifteen (15) years from the date
of acceptance by the Cable Operator unless sooner terminated as provided in this Agreement.
VI AGREEMENT NONEXCLUSIVE
A.This Agreement shall not be construed as any limitation upon the right of the City
to grant to other Persons rights, privileges, or authorities similar to the rights, privileges, and
authorities herein set forth, in the same or other Streets, alleys, or other public ways or public
places. The City specifically reserves the right to grant at any time during the life of this
Agreement or renewal thereof, if any, such additional agreements for a wireline provider of
Cable Service or Video Programming, to the extent permissible under Applicable Law, which (i)
contain substantially similar terms and conditions which do not provide more favorable terms or
conditions than those required of Cable Operator herein, and (ii) the material provisions thereof
shall be competitively neutral and nondiscriminatory, in accordance with Applicable Law, and
shall be reasonably comparable to those contained herein, in order that one wireline operator not
be granted an unfair competitive advantage over another wireline operator as determined by City.
B.Notwithstanding any provision to the contrary, if another wireline operator,
legally authorized by state or federal law, makes available for purchase by Subscribers or
customers Cable Service or its functional equivalent (including Video Programming under 47
U.S.C. § 571(a)(3) or § 573) within the Service Area without a Franchise or other similar lawful
authorization granted by the City and the City has the lawful authority to require a franchise from
that wireline operator, the City shall within thirty (30) days of a written request from Cable
Operator, modify this Franchise to insure that the obligations applicable to Cable Operator are no
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more burdensome than those imposed on the new competing provider. If the City fails or refuses
to make modifications consistent with this requirement, Cable Operator, upon ninety (90) days
advance written notice to City, shall have the right to terminate this Franchise and secure a
replacement franchise, license, consent, certificate or other authorization from any appropriate
governmental entity or exercise any other rights the Cable Operator may have under state or
federal law. Nothing herein shall in any way limit or reduce Cable Operator’s right to provide
Cable Service in the City under Applicable Laws, nor the City’s right to regulate Cable
Operator’s provision of Cable Service in the City under Applicable Laws.
VII SERVICE AREA AND LINE EXTENSIONS
A.Cable Operator shall construct and operate its Cable System so as to provide
Service to all parts of its Service Area as provided in this Agreement and having a density
equivalent of seven (7) residential units per one-quarter (1/4) cable mile of System, as measured
from the nearest tap on the Cable System.
B.Where the density is less than that specified above, Cable Operator shall inform
Persons requesting Service of the possibility of paying for Installation or a line extension and
shall offer to provide them with a free written estimate of the cost, which shall be provided
within fifteen (15) working days of such a request. The charge for Installation or extension for
each Person requesting Service shall not exceed a pro rata share of the actual cost of extending
the Service.
VIII SYSTEM
A.Present System. Cable Operator shall operate and maintain for the term of this
Agreement a System providing a minimum of 550 MHz.
B.Character Generator. The Cable Operator shall donate to the City, free of charge,
the existing character generator and existing modulating equipment. The character generator
shall be located in such public building or other location in the City as may be designated by the
City with ability to transmit signals to the Headend. The internal equipment that has previously
been installed by the Cable Operator, which permits the character generator to transmit signals to
the Headend, if any, shall become the property of the City. All maintenance of said internal
equipment shall be the responsibility of the City.
C.Public, Educational and Governmental Access.
(1)At all times throughout the life of this Agreement, the Cable Operator
shall provide City, at no cost to the City or users, a maximum of three (3) Channels for
non-commercial PEG access unless otherwise mutually agreed upon by the parties
thereto. The PEG Channels will be governed by a set of operating rules and procedures
that will be established by the City with input from the Cable Operator.
(2)The Cable Operator shall, at no cost to City unless otherwise specified
herein, provide a return connection to facilitate the exchange of programming, including
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live cablecasting of programming, from the following locations: 1) City Hall, 2) Grand
Island Television studio, and 3) College Park (also includes Doane College and Central
Community College).
(3)The City shall designate three (3) PEG Channels which shall be
transmitted to Subscribers on the Basic Cable Service tier. PEG Channels shall initially
be carried on Channels 6 and 12 and may be carried in a digital format on the Basic Cable
Service tier consistent with Section VIIII.C.6. The Cable Operator shall monitor the PEG
Channels for technical quality to ensure that they meet FCC technical standards including
those applicable to the carriage of PEG Channels; provided however, that the Cable
Operator is not responsible for the production quality of all PEG programming
productions. The City, or its designee, shall be responsible for the production and quality
of all PEG programming.
(4)The Cable Operator shall provide the PEG Channels as part of the Basic
Cable Service. The PEG Channels will be viewable by the Subscriber without the need
for additional equipment beyond that required to receive the Basic Cable Service.
(5)PEG Channels shall be accessed by Subscribers through use of standard
equipment required to receive Basic Cable Service.
(6)If the PEG Channels are relocated from their present channel locations,
they will be located reasonably close in proximity to other broadcast Channels and/or
other commercial video Channels on the Basic Cable Service tier. The Cable Operator
agrees that PEG Channels located immediately below Channel # 1 are not considered in
reasonably close proximity. The Cable Operator agrees not to encrypt the PEG Channels
any differently than other commercial Channels available on the System.
(7)Within ninety (90) days of acceptance of this Agreement, the Cable
Operator shall initiate a forty cents ($.40) per Subscriber, per month PEG capital fee,
which shall be paid to the City quarterly in the same manner as Franchise Fees,
throughout the life of this Agreement, solely to fund PEG access related capital
expenditures (hereinafter “Access Fee”). Any and all payments by Cable Operator to
City in support of PEG access programming shall not be deemed “Franchise Fees” within
the meaning of Section 622 of the Cable Act (47 U.S.C. § 542) provided that the City
utilizes the Access Fee solely for PEG access-related capital expenditures.
D.Undergrounding requirements. The Cable Operator shall at all times comply with
the City Code regarding undergrounding requirements; provided however, the Grantee may
construct or upgrade its facilities aerially where existing utility(ies) are aerial and shall convert
such facilities to underground when the existing utility(ies) are being converted on a schedule
consistent with that of the other utilities. If public funds are available to any company, excluding
the City or its affiliates, using such Street, easement, or right-of-way for the purpose of defraying
the cost of any of the foregoing, such funds shall also be made available to the Grantee.
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IX TECHNICAL STANDARDS
A.The Cable System shall at all times operate so that, at a minimum and in
accordance with Applicable Law, it complies with the technical specifications promulgated by
the FCC relating to Cable Communications Systems pursuant to the FCC’s rules and regulations
and found in Title 47, Section 76.01 to 76.617, (as they may be amended from time to time),
which regulations are expressly incorporated herein by reference.
B.Cable Operator shall perform all System tests at the intervals required by the
FCC, and all other tests reasonably necessary to determine compliance with technical standards
required by this Agreement.
C.Written records of all System test results performed by or for Cable Operator shall
be maintained, and shall be available for City inspection upon request.
D.Technical Tests. The City may perform technical tests of the Cable System by
qualified Persons with proper equipment during reasonable times and in a manner which does
not unreasonably interfere with the Normal Operating Conditions of the Cable Operator or the
Cable System in order to determine whether or not the Cable Operator is in compliance with
FCC Technical Specifications. Such tests may be undertaken only after giving the Cable
Operator reasonable notice thereof, and providing a representative of the Cable Operator, an
opportunity to be present during such tests. In the event that such testing demonstrates that the
Cable Operator has substantially failed to comply with the material provisions of the FCC
Technical Specifications, the reasonable costs of such tests shall be borne by the Cable Operator.
In the event that such testing demonstrates that the Cable Operator has substantially complied
with such material provisions hereof, the cost of such testing shall be borne by the City. Except
in emergency circumstances, the City agrees that such testing shall be undertaken no more than
one (1) time per calendar year, and that the results thereof shall be made available to the Cable
Operator.
E.Notice of shutdown. At least twelve (12) hours before any planned shutdown, the
Cable Operator shall give notice to affected Subscribers when possible, of maintenance or major
equipment change-outs which require loss of Cable Service to twenty-five (25) or more
customers.
X SYSTEM DESIGN AND CAPACITY
A.Buried Drops. A Cable Operator must bury new Drops within a reasonable time
period, subject to weather conditions. In the event the ground is frozen, a Cable Operator will be
permitted to delay burial until the ground is suitable for burial which in no event must be later
than June 1st.
B.All new Drops shall comply with the National Electrical Code and the National
Electrical Safety Code, as they relate to cable television Drop installation. In addition, with
respect to any existing unburied Drops currently lying on the ground, the Cable Operator shall
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bury such Drops within a reasonable period of time, in accordance with the requirements of this
paragraph, weather permitting. Prior to burying any Drop that is not located in an existing
easement or public right-of-way, the Cable Operator, or its representative, shall provide notice to
the occupant of the dwelling unit and shall bury such Drop at a mutually agreed upon location.
C.Local Office.
(1)For a minimum period of eight (8) years after the effective date of this
Agreement, Cable Operator shall maintain a location in the City for receiving Subscriber
inquiries, bill payments, and equipment transfers. The location must be staffed by a
Person capable of receiving inquiries and bill payments and the location shall be open
hours that are at the sole discretion of the Cable Operator that are economic and business
logical. At such time as the Cable Operator may close the local office in the City
(following completion of the first eight (8) years of this Franchise), Cable Operator shall
maintain a drop box within the Service Area for receiving Subscriber payments. Subject
to the foregoing, in the event another wireline multichannel video program distributor
(“MVPD”) commences video service in the City and does not have a franchise or
contractual obligation to maintain a local office in the City, Cable Operator may elect to
close the local office or substantially reduce its functions in its sole discretion.
(2)Payments at Cable Operator’s drop box location shall be deemed received
on the date such payments are picked up by the Cable Operator if deposited no later than
3 PM of that day. Payments deposited later than 3 PM may be considered to be received
in the following business day’s processing.
D.Additional Construction Codes.
(1)The Cable Operator shall at all times comply with:
(a)National Electrical Safety Code (National Bureau of Standards);
(b)National Electrical Code (National Bureau of Fire Underwriters);
and
(c)Applicable FCC or other federal, state and local regulations,
including such construction, installation, and maintenance operational standards
as may be adopted by the City from time to time and good and accepted industry
practices as they pertain to the cable television industry.
XI GENERAL PROVISIONS
The following provisions shall be applicable to the Cable System throughout the life of
this Agreement.
A.Emergency Alert Capabilities. The Cable Operator shall continue to provide the
existing Emergency Alert System (“EAS”). However, if the EAS is not tested at regular
intervals by the appropriate civil defense authority, the Cable Operator shall not be liable if such
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EAS does not perform at required levels. In the case of any emergency or disaster, the Cable
Operator shall, upon request of the City, make available its facilities and personnel to the City to
provide technical assistance with the operation of the EAS during the emergency or disaster
period. The EAS shall comply with FCC Standards.
B.Parental Control Devices. The Cable Operator shall provide Subscribers the
ability to lock out such Channels as they may desire and provide equipment to lock out such
Channels.
C.Employee Identification. The Cable Operator shall provide a standard
identification document to all employees, including employees of subcontractors, who will be in
contact with the public. Such documents shall include a telephone number that can be used to
verify identification. In addition, the Cable Operator shall use its best efforts to clearly identify
all personnel, vehicles, and other major equipment that are operating under the authority of the
Cable Operator.
D.Free Service. Cable Operator shall provide free of charge throughout the term of
this Agreement, Installation of one (1) Drop, one (1) cable outlet, and one (1) Converter, if
necessary, and Basic Cable Service and expanded basic level of Cable Service or the future
equivalent of such tiers of Service (“Free Service”), without charge to the institutions listed in
Attachment C to this Agreement which currently receive Free Service, as long as the institutions
remain educational institutions or are not leased or sold for private use. Existing Converters
provided by Cable Operator to existing additional drops at the institutions listed in Attachment C
will be provided at no charge for the term of this Agreement. In the event the City requests a
Drop to another public institution or of an institution on Attachment C does not currently receive
Free Service, the City shall be responsible for the costs, on a time and material basis, of
extension in excess of two hundred twenty-five (225) feet. The Cable Operator shall provide
Free Service to such subsequently designated institutions without charge.
(1)The installation of additional Drops and/or outlets and/or Converters in
any location will be provided by the Cable Operator at the rate card price then in effect
for Grand Island residential Subscribers. Alternatively, said institutions may add
additional outlets at their own expense, as long as such Installation meets Cable
Operator’s technical standards in accordance with Section X (A) of the Agreement. The
additional outlets of Cable Service shall not be used to sell Cable Service in or
throughout such buildings. Outlets shall not be located in common or public areas.
E.Reporting. In addition to the other reporting requirements provided herein the
Cable Operator shall, upon request, submit reports to the City in a mutually agreed upon format
consistent with the Cable Operator’s existing Systems, and demonstrate the Cable Operator’s
compliance with the terms and provisions of this Agreement.
F.Annexation by Municipality. It is understood that the annexation by the City of
areas in the unincorporated part of the City and which are being served by the Cable Operator
shall be governed by the provisions of this Agreement.
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XII SUBSCRIBER RIGHTS AND COMPLAINTS
A.The Cable Operator shall comply with the standards and requirements for
customer service set forth in Attachment A throughout the term of this Agreement.
B.Subscriber Contracts. Annually, Cable Operator shall provide the City with any
standard form residential Subscriber contract utilized by Cable Operator. A list of Cable
Operator’s current Subscriber rates and charges for Cable Service shall be provided to the City
and shall be available for public inspection.
C.Refund Policy. Cable Operator shall maintain a refund policy consistent with 47
U.S.C. §76.309(c)(3). If a Subscriber’s Cable Service is interrupted or discontinued, without
cause, for twenty-four (24) or more consecutive hours, the Cable Operator shall, upon request by
the Subscriber within sixty (60) days of such interruption or discontinuation, credit such
Subscriber pro rata for such interruption or discontinuation.
D.Late Fees. Cable Operator shall comply with all applicable state and federal laws
with respect to any assessment, charge, cost, fee or sum, however characterized, that the Cable
Operator imposes upon a Subscriber for late payment of a bill.
E.Disputes. All Subscribers and members of the general public may direct
complaints, regarding Cable Operator’s Service or performance to the chief administrative
officer of the City or the chief administrative officer’s designee, which may be a board or
commission of the City.
F.Subject to the privacy provisions of 47 U.S.C. § 521 et seq. (1993), Cable
Operator shall prepare and maintain written records of all written complaints made to them and
the resolution of such complaints, including the date of such resolution. Such written records
shall be on file at the office of Cable Operator. Upon request, Cable Operator shall provide City
with a summary of such complaints.
XIII EQUAL OPPORTUNITY
The Cable Operator shall comply with Applicable Law regarding equal employment
opportunity and the provision of Cable Service in the City.
XIV AGREEMENT RENEWAL
The City and the Cable Operator agree that renewal of this Agreement shall be governed
by the requirements of the Cable Act, 47 U.S.C. Section 546, as may from time to time be
amended.
XV FRANCHISE FEE
A.The Cable Operator shall pay, as a Franchise Fee, to the City five percent (5%) of
the Cable Operator’s annual Gross Revenues collected during the period of its operation under
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this Agreement in the City. Each payment shall be accompanied by a brief report, certified as
true and correct by a financial representative of the Cable Operator, showing the basis for the
computation in form and substance substantially the same as Attachment B attached hereto.
B.The Cable Operator shall file with the City, forty-five (45) days after the last day
of each quarter, a revenue statement showing the Gross Revenues received by it during the
preceding quarter. The Cable Operator shall pay on a quarterly basis (by the 45th day after the
end of each quarter) the Franchise Fee to the City for the preceding quarter.
C.The City shall have the right to audit and copy the Cable Operator’s revenue
records with respect to the Cable System within the City and all relevant records, and to
recompute any amounts determined to be payable under this Agreement. If the results of the
audit by the City show a discrepancy of more than five percent (5%) in the Franchise Fee that
were to be paid to the City, the Cable Operator shall assume all reasonable document out-of-
pocket costs of such audit, and pay same upon demand by the City, costs not to exceed Seven
Thousand Five Hundred Dollars ($7,500). This cost reimbursement shall only be permitted, if
applicable, two (2) times during the ten (10) year franchise term.
D.In the event that any Franchise Fee payment is not received by the City on or
before the applicable due date, the City shall send a written notice to Cable Operator informing
the Cable Operator of the past due payment. If Cable Operator fails to remit payment within ten
(10) days of receipt of said written notice from City, the Cable Operator shall remit a late
payment surcharge of one percent (1.0%) per month of the total amount of the Franchise Fee
payment due. The City shall not be entitled to any additional interest or liquidated damages
unless the Cable Operator, thirty (30) days following receipt of the above referenced written
notice from City has not remitted the applicable Franchise Fee payment and late payment
surcharge to the City. Thereafter, the City shall be entitled to any and all available enforcement
remedies under the Agreement and Applicable Law. In the event this Agreement is revoked or
otherwise terminated prior to its expiration date, the Cable Operator shall file with the City,
within ninety (90) days of the date of revocation or termination, a revenue statement showing the
Gross Revenues received by it since the end of the previous year and shall make adjustments at
that time for the Franchise Fee due up to the date of revocation or termination.
E.No acceptance of any payment by the City shall be construed as a release, waiver
or as an accord and satisfaction of any claim the City may have for further or additional sums
payable as a tax, fee or for the performance of any other obligation of the Cable Operator.
F.In the event federal law is amended to allow Franchise Fees in excess of five
percent (5%) of Gross Revenues, the City shall be entitled to raise said Franchise Fees payable
by the Cable Operator up to the maximum allowed by federal law, subject to the Cable
Operator’s prior written agreement.
G.The Franchise Fees shall be in addition to any and all taxes or other levies or
assessments which are now or hereafter required to be paid by businesses in general by any law
of the City, the State of Nebraska, or the United States, including without limitation sales and
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other taxes, business license fees or other payments.
XVI REGULATION, RATES, AND CHARGES
A.Regulatory Authority. The City may exercise, continue to exercise, assign or
delegate appropriate regulatory authority under the provisions of this Agreement or Applicable
Law. Regulation may be exercised through any duly designated consortium, duly established
state body, or other entity created or appointed to advise or support the City or to handle its
regulatory responsibilities subject to Applicable Law.
B.The City and the Cable Operator acknowledge that any rates and charges relating
to the provision of Cable Service and equipment under this Agreement shall be governed by
Applicable Laws and the rules and regulations of the FCC (as amended). The City does not
waive any right they may have under Applicable Law to regulate the rates in the future. The
City and the Cable Operator, in evaluating and resolving any matters which arise concerning
rates and charges, will adhere to Applicable Laws and FCC rules and regulations.
XVII CONSTRUCTION PROVISIONS
The Cable Operator shall at all times comply with the City Code regarding right-of-way use.
XVIII INSURANCE AND BONDS OR OTHER SURETY PROVISIONS
A.Insurance Requirements.
(1)Cable Operator shall maintain in full force and effect, at its own cost and
expenses, during the term of this Agreement, comprehensive general liability insurance in
the amount of Two Million and No/100 Dollars ($2,000,000.00) combined single limit
for bodily injury, death and property damage. City, and their capacity as such, City’s
officers, agents and employees, shall be named as an additional insured on the policy and
Cable Operator shall file a Certificate of Insurance with the City Clerk. The Grantee
shall furnish the Grantor with current certificates of insurance evidencing such coverage.
(2)Each policy of insurance (including the certificates of insurance
evidencing such coverage) shall contain a statement on its face that the insurer will not
cancel the policy or fail to renew the policy, whether for non-payment of premium, or
otherwise, and whether at the request of Cable Operator or for other reasons, except after
thirty (30) calendar days advanced written notice from the insurer to the City Clerk,
which may be provided electronically or by US mail.
B.Bonds and Other Surety. At all times hereunder until the Cable Operator has
liquidated all of its obligations under the Agreement to the City, the Cable Operator shall furnish
a bond or other surety in the amount of Twenty-Five Thousand Dollars ($25,000), conditioned
upon the faithful performance by the Cable Operator of its material obligations under this
Agreement. The City may, from year to year and in its sole discretion, reduce the amount of any
such bond or other surety. The bond or other surety shall insure the faithful performance by the
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Cable Operator of all the provisions of this Agreement, and compliance with all orders, permits
and directions of the City and the payment by Cable Operator of any claim, penalties, damages,
liens and taxes due the City related thereto or which arise by reason of the construction,
operation or maintenance of the Cable System. Any failure by Cable Operator to provide the
bond or other surety as required herein shall constitute a breach of this Agreement.
XIX PERFORMANCE GUARANTEE ESCROW; AND LIQUIDATED DAMAGES
A.In the event that the City has reason to believe that the Cable Operator has
defaulted in the performance of any material provision of this Agreement, except as excused by
force majeure, the City shall notify the Cable Operator in writing, by certified mail, of the
provision or provisions of which the City believes Cable Operator to be in default and the details
relating thereto (“Alleged Default Notice”).
B.Cable Operator shall have thirty (30) days from receipt of the notice described in
paragraph (A) above to (a) respond to the City contesting the assertion of non-compliance, or (b)
to cure such default or, in the event that, by the nature of default, such default cannot be cured
within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the
City of the steps being taken and the projected date that they will be completed. In such case the
City shall establish a reasonable deadline when such cure shall be completed having considered
the reasonable input of the Cable Operator.
C.In the event that Cable Operator fails to respond to the notice described in
paragraph A above pursuant to the procedures set forth in paragraph B above, the City shall
schedule a public meeting to investigate the default. Such public meeting shall be held at the
next regularly or specially scheduled meeting of the City. The City shall notify the Cable
Operator in writing via certified mail, of the time and place of such meeting at least fourteen (14)
days prior to such meeting and provide the Cable Operator with an opportunity to be heard.
D.Subject to the notice and cure requirements of this section, the City shall be
authorized to withdraw from the bond or other surety the following penalties:
(1)For failure to provide data, documents, reports or information or to
participate with the City during a System review, the penalty shall be One Hundred Fifty
and No/100 Dollars ($150.00) per day.
(2)For failure to comply with any material provisions of this Agreement for
which a penalty is not otherwise specifically provided, the penalty shall be One Hundred
Fifty and No/100 Dollars ($150.00) per day.
(3)For failure to test, analyze and report on the performance of the System
following a request by the City, the penalty shall be One Hundred and No/100 Dollars
($100.00) per day.
E.Subject to applicable federal and state law, in the event the City determines that
Cable Operator is in default of any provision of the Agreement, the City may:
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(1)Foreclose on all or any part of any security provided under this
Agreement, if any, including, without limitation, any bonds or other surety; provided,
however, the foreclosure shall only be in such a manner and in such amount as the City
reasonably determines is necessary to remedy the default; or
(2)Draw against the bond or other surety all penalties due it, as provided for
under this Agreement; or
(3)Commence an action at law for monetary damages or seek other equitable
relief; or
(4)Seek specific performance of any provision, which reasonably lends itself
to such remedy, as an alternative to damages.
(5)See termination in accordance with Section XXI.
F.The Cable Operator shall not be relieved of any of its obligations to comply
promptly with any provision of the Agreement by reason of any failure of the City to enforce
prompt compliance.
XX TERMINATION
A.In addition to all other rights and powers retained by the City under this
Agreement, the City reserves the right to terminate this Agreement, and the Cable Operator’s
rights hereunder, in the event the Cable Operator shall default in the performance of any material
term, covenant or agreement of this Agreement. By way of example, and not limitation, the City
shall have the right to terminate this Agreement if the Cable Operator shall fail to cure any
material default under this Agreement as provided in Section XX.
B.Before the City may terminate this Agreement and the Cable Operator’s rights
hereunder, the City shall conduct a public hearing, at which time the Cable Operator shall be
given an opportunity to attend and present evidence and argument in opposition to the forfeiture
or termination of this Agreement. The Cable Operator shall be provided with not less than thirty
(30) days notice prior to such public hearing.
C.Any such declaration of forfeiture or termination shall be subject to judicial
review as provided by law.
D.Nothing herein contained shall limit or restrict any legal rights that the City or the
Cable Operator may have arising from a default in the performance of the terms, conditions and
covenants of this Agreement by the Cable Operator.
XXI REMOVAL OF CABLE SYSTEM
A.In the event of termination or forfeiture of the Agreement or abandonment of the
System, the City may require the Cable Operator to remove all or any portion of its System from
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all rights-of-way and public property within the City; provided, however, that the Cable Operator
will not be required to remove those portions of its System required to provide
Telecommunications Services to the extent Cable Operator lawfully provides
Telecommunications Services over the System.
B.If the Cable Operator has failed to commence removal of its System, or such part
thereof as was designated by the City, within one hundred twenty (120) days after written
demand for removal is given, or if the Cable Operator has failed to complete such removal
within twelve (12) months after written demand for removal is given, the City may apply funds
secured by the Agreement toward removal.
XXII TRANSFER OF OWNERSHIP OR CONTROL
Cable Operator’s right, title or interest in this Agreement shall not be sold, transferred,
assigned or otherwise encumbered, without the prior written consent of the City, such consent
not to be unreasonably withheld. No such consent shall be required, however, if the sale,
transfer, assignment or encumbrance is to an affiliate of Cable Operator, when said affiliate is a
wholly owned subsidiary. Additionally, no such consent shall be required, for a transfer in trust,
by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Cable
Operator in this Agreement or Cable System in order to secure indebtedness.
XXIII PERIODIC REEVALUATION AND RENEGOTIATIONS
A.Since the field of cable communications is rapidly evolving and many
technological, regulatory, financial, marketing, legal, competitive, and other changes are likely to
occur during the life of this Agreement, a degree of flexibility is needed in order to achieve and
maintain a Cable System that adequately serves the public interest. To this end, and subject to
Applicable Law, this Agreement may be amended by mutual written agreement of the City and
Cable Operator.
B.The City may evaluate the Cable Operator’s Cable Service and operations no
more than once every five (5) years during the term of this Agreement.
C.The City and the Cable Operator may meet at other times to discuss and negotiate
changes to this Agreement which are mutually agreed upon by both parties.
D.During any review and evaluation session, the Cable Operator shall cooperate
with the City and shall provide such reasonable information and upon such terms and conditions
as the parties shall mutually agree upon.
XXIV RIGHTS OF INDIVIDUALS
As previously set forth, the Cable Operator shall not deny Service, deny access nor
otherwise discriminate against Subscribers, Channel users or any Person on the basis of race,
creed, color, religion, national origin, sex, ancestry, age or marital status. The Cable Operator
shall comply with all Applicable Laws relating to non-discrimination and privacy. Liability for
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obscenity, defamation or invasion of privacy on any PEG Channels shall rest with the Person,
group of Persons or any organization utilizing said PEG Channels, and no indemnification or
liability of the Cable Operator is hereby intended or provided herein. The Cable Operator shall
comply with all the privacy provisions pursuant to 47 USC §551 of the Cable Act or other
Applicable Laws or regulations.
XXV COOPERATION
The parties recognize that it is in their mutual best interests for the Cable System to be
operated as efficiently as possible. To achieve this, the parties agree to cooperate with each other
in accordance with the terms and provisions of this Agreement.
XXVI WAIVER
The failure of the City at any time to require performance by the Cable Operator of any
provision hereof shall in no way affect the right of the City hereafter to enforce the same. Nor
shall the waiver by the City of any breach of any provision hereof or the failure of the City to
require or enforce prompt compliance be taken or held to be a waiver of any succeeding breach
of such provision, or as a waiver of the provision itself or any other provision. Nothing herein
shall be deemed to waive or modify any statute of limitation or any lawful defense which is
available to Cable Operator.
XXVII BOOKS AND RECORDS
A.Throughout the term of this Franchise, the Cable Operator agrees that the City,
upon reasonable prior written notice to the Cable Operator, may review such of the Cable
Operator’s books and records regarding the operation of the Cable System and the provision of
Cable Service in the City which are reasonably necessary to monitor and enforce Cable
Operator’s compliance with the provisions of this Agreement. All such documents pertaining to
financial matters that may be the subject of an inspection by the City shall be retained by the
Cable Operator for a minimum period required by Applicable Laws. The Cable Operator shall
not deny the City access to any of the Cable Operator's records on the basis that the Cable
Operator's records are under the control of any parent corporation, affiliated entity or a third
party. The Cable Operator agrees that the City may upon ten (10) days written request review
and copy such of its books and records, during Normal Business Hours and on a non-disruptive
basis in a location not more than twenty (20) miles from the City. The Cable Operator shall
maintain sufficient books and records of customer service, customer complaints and billing and
maintain other books and records in Grand Island to monitor compliance with the terms hereof.
B.Confidential Information. Cable Operator may choose to provide any confidential
books and records that it is obligated to make available to the City pursuant to Section XXVIII A
of this Agreement, by allowing the City, or its designated representative(s), to view the books
and records at a mutually agreeable location and without City obtaining its own copies of such
books and records. Alternatively, confidential or proprietary information may be disclosed
pursuant to a reasonable mutually agreeable non-disclosure agreement which shall substantially
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be in the same form as attached as Attachment D, subject to modification as specifically required
under Applicable Law. The intent of the parties is to work cooperatively to insure that all books
and records reasonably necessary for City’s monitoring and enforcement of franchise obligations
are provided to City. To the extent that Cable Operator does provide books or records directly to
the City, City agrees to keep confidential any proprietary or confidential books or records to the
extent permitted by Applicable Law and Attachment D. Cable Operator shall be responsible for
clearly and conspicuously identifying any confidential or proprietary information so as to prevent
inadvertent disclosure.
XXVIII CUMULATIVE RIGHTS
The rights and remedies reserved to the City and Cable Operator by this Agreement are
cumulative and shall be in addition to and not in derogation of any other legal or equitable rights
or remedies which the City and Cable Operator may have with respect to the subject matter of
this Agreement, and a waiver thereof at any time shall have no effect on the enforcement of such
rights or remedies at a future time.
XXIX COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS
The Cable Operator, its contractors, employees, and agents shall comply with all
Applicable Laws, rules, and regulations. Except as otherwise provided for herein, the Cable
Operator and the City shall be entitled to all rights and be bound by all changes in local, state,
and federal law which occur subsequent to the effective date of this Agreement. In addition to
the inherent powers of the City to regulate and control the Cable Operator under this Agreement,
and those powers expressly reserved by the City, or agreed to and provided for herein, the right
and power is hereby reserved by the City to promulgate such additional regulations as it shall
find necessary in the exercise of its lawful powers, subject to Section II.B. herein.
XXX NOTICES
Every notice or response to be served upon the City or the Cable Operator shall be in
writing, and shall be deemed to have been duly given to the required party five (5) business days
after having been posted in a properly sealed and correctly addressed envelope by certified or
registered mail, postage prepaid.
The notices or responses to the City shall be addressed as follows:
The City of Grand Island, Nebraska
Attention: City Administrator’s Office
100 East First Street, Box 1968
Grand Island, NE 68802
The notices or responses to the Cable Operator shall be addressed as follows:
Charter Communications
Attention: Vice President of Legal Operations
12405 Powerscourt Drive
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St. Louis, MO 63131
With a non-binding courtesy copy to:
Charter Communications
Attention: General Manager
809 Central Ave.
Kearney, NE 68847
The City and the Cable Operator may designate such other address or addresses from
time to time by giving notice to the other.
XXXI CAPTIONS
The captions to sections contained herein are intended solely to facilitate the reading
thereof. Such captions shall not affect the meaning or interpretation of the text herein.
XXXII INDEMNIFICATION
Cable Operator hereby agrees to indemnify and hold the City, including its agents,
elected and appointed officials and employees, harmless from any claims, actions, liabilities or
damages resulting from the actions of Cable Operator in constructing, operating or maintaining
the Cable System or arising from the existence of the Cable System in the City. City agrees to
give the Cable Operator written notice of its obligation to indemnify City within ten (10) days of
receipt of a claim or action pursuant to this section. Notwithstanding the foregoing, the Cable
Operator shall not be obligated to indemnify City for any damages, liability or claims resulting
from the willful misconduct or negligence of City or for the City’s use of the Cable System.
XXXIII GOVERNMENTAL IMMUNITY
The City is relying on, and does not waive, or intend to waive, by any provision of this
Agreement, any right, immunity, limitation or protection (including complete damage immunity)
otherwise available to the City, its officers, employees or agents under federal, state or local law.
XXXIV FORCE MAJEURE
Neither party shall be liable for any failure of performance hereunder due to causes
beyond its reasonable control including but not limited to; acts of God, fire, explosion, vandalism
or other similar catastrophes; national emergencies; insurrection; strike or organized work
slowdown; riots or wars.
XXXVTIME IS OF THE ESSENCE
Whenever this Agreement sets forth any time for any act to be performed by either of the
parties, such time shall be deemed to be of the essence of this Agreement.
XXXVI CONSTRUCTION OF AGREEMENT
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Except as otherwise provided for herein, this Agreement shall be governed, construed,
and enforced in accordance with the laws of the State of Nebraska (as amended), the Cable Act
as amended, any applicable rules, regulations and orders of the FCC and any other Applicable
Laws, rules, regulations, legislation, or orders (as such now exist, are later amended or
subsequently adopted).
XXXVII NO JOINT VENTURE
Nothing herein shall be deemed to create a joint venture or principal agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward third
Persons or the public in any manner which would indicate any such relationship with the other.
XXXVIII ENTIRE AGREEMENT
This Agreement and all attachments represent the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof: and supersede all prior oral
negotiations between the parties. This Agreement can be amended, supplemented, modified, or
changed only by an agreement in writing which makes specific reference to this Agreement or to
the appropriate attachment and which is signed on behalf of both parties.
XXXIX ACTIONS OF THE CABLE OPERATOR
In any action by the City or the Cable Operator mandated or permitted under the terms
hereof, it shall (unless specified otherwise in this Agreement) act in a reasonable, expeditious,
and timely manner.
XL SEVERABILITY
If any section, sentence, paragraph, term, or provision hereof is determined to be illegal,
invalid, unconstitutional or unenforceable, by any court of competent jurisdiction or by any state
or federal regulatory authority having jurisdiction thereof, such determination shall have no
effect on the validity of any other section, sentence, paragraph, term, or provision hereof, all of
which will remain in full force and effect for the term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
ATTEST:CITY OF GRAND ISLAND, NE
City Clerk Mayor
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ATTEST:CCVI OPERATING LLC
d/b/a Charter Communications
Secretary By:President
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ATTACHMENT A.CUSTOMER SERVICE STANDARDS
A.Cable System office hours and telephone availability.
(i)The Cable Operator will maintain a local, toll-free or collect call telephone
access line which will be available to its Subscribers twenty-four (24) hours a day,
seven (7) days a week.
(ii)Trained company representatives will be available to respond to
Subscriber telephone inquiries during Normal Business Hours.
(iii)After Normal Business Hours, the access line may be answered by a
service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
company representative on the next business day.
(iv)Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less than
ninety percent (90%) of the time under Normal Operating Conditions, measured
on a quarterly basis.
(v)The Cable Operator will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards above
unless an historical record of complaints indicates a clear failure to comply.
(vi)Under Normal Operating Conditions, the Subscriber will receive a busy
signal less than three percent (3%) of the time.
(vii)Customer service center and bill payment locations will be open at least
during Normal Business Hours and will be conveniently located.
B.Installations, Outages and Service Calls. Under Normal Operating Conditions,
each of the following four (4) standards will be met no less than ninety five percent (95%) of the
time measured on a quarterly basis:
(i)Standard Installations will be performed within seven (7) business days
after an order has been placed. “Standard” Installations are those that are located
up to one hundred twenty-five (125) feet from the existing distribution system.
(ii)Excluding conditions beyond the control of the Cable Operator, the Cable
Operator will begin working on “Service Interruptions” promptly and in no event
later than twenty-four (24) hours after the interruption becomes known. The
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Cable Operator must begin actions to correct other Service problems the next
business day after notification of the Service problem.
(iii)The “appointment window” alternatives for Installations, Service calls,
and other Installation activities will be either a specific time or, at maximum, a
four (4) hour time block during Normal Business Hours. (The Cable Operator
may schedule Service calls and other Installation activities outside of Normal
Business Hours for the express convenience of the Subscriber.)
(iv)The Cable Operator may not cancel an appointment with a Subscriber
after the close of business on the business day prior to the scheduled appointment.
(v)If a Cable Operator representative is running late for an appointment with
a Subscriber and will not be able to keep the appointment as scheduled, the
Subscriber will be contacted. The appointment will be rescheduled, as necessary,
at a time which is convenient for the Subscriber.
C.Communications between the Cable Operator and Subscribers
(i.)Notifications to Subscribers.
(1)The Cable Operator shall provide written information on each of
the following areas at the time of Installation of Cable Service, at least annually to
all Subscribers and the City, and at any time upon request:
a.Products and Cable Services offered;
b.Prices and options for programming services and
conditions of subscription to programming and other services;
c.Installation and service maintenance policies;
d.Instructions on how to use the Cable Service;
e.Channel positions of programming carried on the Cable
System; and
f.Billing and complaint .procedures, including the address
and telephone number of the City’s cable office.
Subscribers shall be advised of the procedures for resolution of complaints
about the quality of the television signal delivered by the Cable Operator,
including the address of the responsible officer of the City.
(2)Customers will be notified of any changes in rates, programming
services or Channel positions as soon as possible in writing. Notice must be
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given to Subscribers a minimum of thirty (30) days in advance of such changes if
the change is within the control of the Cable Operator. In addition, the Cable
Operator shall notify Subscribers thirty (30) days in advance of any significant
changes in the information required by Section (C)(i)1(a)-(f) of this Attachment
A.
(3)In addition to the requirement of subparagraph (2) of this section
regarding advance notification to Subscribers of any changes in rates,
programming services or Channel positions, Cable Operator shall give thirty (30)
days’ written notice to both Subscribers and the City before implementing any
rate or Service change. Such notice shall state the precise amount of any rate
change and briefly explain in readily understandable fashion the cause of the rate
change (e.g., inflation, change in external costs or the addition/deletion of
Channels). When the change involves the addition or deletion of Channels, each
Channel added or deleted must be separately identified. For purposes of the
carriage of digital broadcast signals, the Cable Operator need only identify for
Subscribers, the television signal added and not whether that signal may be
multiplexed during certain dayparts.
(4)To the extent Cable Operator is required to provide notice of
Service and rate changes to Subscribers, the Cable Operator may provide such
notice using any reasonable written means at its sole discretion.
(5)Notwithstanding any other provision of this section, Cable
Operator shall not be required to provide prior notice of any rate change that is the
result of a regulatory fee, Franchise Fee, or any other fee, tax, assessment, or
charge of any kind imposed by any federal agency, state, or City on the
transaction between the Cable Operator and the Subscriber.
D.Billing.
(i.)Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not limited
to, Basic Cable Service and premium Service charges and equipment charges. Bills will
also clearly delineate all activity during the billing period, including optional charges,
rebates and credits.
(ii.)In case of a billing dispute, the Cable Operator must respond to a written
complaint from a Subscriber within thirty (30) days.
E.Refunds. Refund checks will be issued promptly, but no later than either:
(i.)The Subscriber’s next billing cycle following resolution of the request or
thirty (30) days, whichever is earlier, or
(ii.)The return of the equipment supplied by the Cable Operator if service is
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terminated.
F.Credits. Credits for Service will be issued no later than the Subscriber’s next
billing cycle following the determination that a credit is warranted.
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ATTACHMENT B.FRANCHISE FEE PAYMENT WORKSHEET
TRADE SECRET – CONFIDENTIAL
Month/Year Month/Year Month/Year Total
Cable Service Revenue
Installation Charge
Franchise Fee Revenue
Advertising Revenue
Home Shopping Revenue
Other Revenue
Equipment rental
REVENUE
Fee Calculated
Fee Factor:5%
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ATTACHMENT C.FREE SERVICE TO PUBLIC BUILDINGS
ADAMS STREET PROPERTY
BARR JUNIOR HIGH
CENTRAL CATHOLIC
CITY CIVIL DFNS
CITY HALL
CITY OF GRAND ISLAND, (RACQUET CENTER)
CITY OF GRAND ISLAND FIELDHOUSE
CITY STREET DEPT
DODGE ELEMENTARY
EARLY LEARNING CENTER
EDITH ABBOTT LIBRARY
EMERGENCY CENTER
ENGLEMAN SCHOOL
FIRE STATION 1
FIRE STATION 2
FIRE STATION 3
FIRESTATION 4
GIPS KNEALE ADMINISTRATION BUILDING
G I POLICE DEPT
G I SR HIGH
GATES ELEMENTARY
HEARTLAND LUTHERAN
HOWARD ELEMENTARY
JEFFERSON ELEMENTARY
KNICKREHM SCHOOL
LINCOLN ELEMENTARY
LUTHERN CHURCH SCHOOL
NEWELL ELEMENTARY
NORTHWEST HIGH SCHOOL
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SEEDLING MILE SCHOOL,*
SHOEMAKER ELEMENTARY,*
STARR ELEMENTARY,*
STOLLEY PARK ELEMENTARY,*
SUCCESS ACADEMY
TRINITY LUTHERAN SCHL,*
WALNUT MIDDLE SCHOOL,*
WASMER ELEMENTARY,*
WATER SHOP,CITY
WEST LAWN ELEMENTARY,*
WESTRIDGE ELEMENTARY,*
Island Oasis Water Park, 321 East Fonner Park Road
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ATTACHMENT D.NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT is made as of , 2012 between CC VI
Operating, LLC (“Charter”) and the City of Grand Island, NE (“Recipient”).
WHEREAS, Charter holds a cable television franchise (“Agreement”) issued by Recipient which
requires that Charter make available certain of its books and records to verify Charter’s
compliance with the terms and provisions of the Agreement; and
WHEREAS, Charter is making available for inspection by Recipient certain Confidential
Material (as defined below) for the sole and exclusive purpose of permitting Recipient to
perform an audit of the payments required under the Agreement and to compile a written report
based on the audit findings (the “Purpose”); and
WHEREAS, as a condition to making the Confidential Material available, the parties desire to
protect the confidential nature of the Confidential Material in accordance with the terms of this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the promises contained in this
Agreement, Charter and Recipient hereby agree as follows:
1.Confidential Material. For purposes of this Agreement, the term Confidential Material
shall include all business, financial, technical and other information concerning Charter’s
business, provided in writing or in any other form or media; provided, however, that
“Confidential Material” shall not include any information that (a) becomes generally available to
the public other than as a result of disclosure, directly or indirectly, by Recipient or its
Representatives (as defined below), or (b) was available to Recipient on a non-confidential basis
prior to disclosure by Charter, (c) is lawfully obtained from a third party under no obligation of
confidentiality, (d) is developed by the Recipient or is generally disclosed by Charter to third
parties without an obligation of confidentiality. This Agreement imposes no obligation on
Recipient with respect to any portion of the Confidential Material disclosed by Charter, unless
such portion is marked “CONFIDENTIAL” prior to submitting such information to Recipient.
2.Restriction on Use and Disclosure. Consistent with Section of the Agreement, Charter
shall provide all books and records requested by the City or City’s agent in the following
manner: 1) a mutually acceptable physical location within the City; or 2) via mail or electronic
communication acceptable to the City and Grantee. Recipient and its Representatives may make
such notes with respect to the Confidential Material (“Notes”) as may be necessary for the
Purpose, and all such Notes shall be treated as Confidential Material hereunder. Recipient shall
use the Confidential Material solely in furtherance of the Purpose, and shall not disclose the
Confidential Material or any portion thereof to any person except those of its employees,
consultants and advisors who need to know such information in furtherance of the Purpose (the
persons to whom such disclosure is permitted being collectively referred to as
“Representatives”). Recipient agrees that, before disclosing the Confidential Material or any
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portion thereof to any Representatives, Recipient will inform the Representatives of the
confidential nature of the Confidential Material and of the Representatives’ duty to treat the
Confidential Material in accordance with this Agreement. Without in any way limiting the
foregoing, Recipient shall take all steps necessary to prevent disclosure of the Confidential
Material under any open records law, including, without limitation, by exercising its discretion
not to disclose Confidential Material in response to an open records act request, and taking all
necessary actions to defend against such request. If Recipient or any of its Representatives
becomes legally compelled to disclose any of the Confidential Material, the compelled party
shall provide Charter with prompt notice of such requirement prior to disclosure so that
Recipient may seek a protective order or other appropriate remedy. If such protective order or
other remedy is not obtained, the compelled party shall furnish only that portion of the
Confidential Material which it is legally required to furnish and shall use its best efforts to assure
that confidential treatment will be accorded such Confidential Material. Recipient shall have the
right to draft a written report to fulfill the Purpose of the review and Recipient agrees that in
drafting said report cause any such audit report to be treated confidentially to the full extent
permitted by law. Information shall, to the extent feasible, be provided in an aggregate form
and Recipient shall use its best efforts not to communicate confidential information in the report
unless necessary to communicate a finding of the audit/review.
3.Equitable Remedies. Recipient acknowledges that, in the event of a breach or threatened
breach of this Agreement, there is a substantial likelihood of material, irreparable injury to
Charter, and that money damages would not be a sufficient remedy for any such breach or
prospective breach by Recipient or its Representatives. Recipient therefore agrees that Charter
shall be entitled to specific performance of Recipient’s agreements herein, and to injunctive
relief to terminate or prevent any breach or prospective breach of this Agreement. No bond or
other security shall be necessary with respect to such relief. Charter shall be entitled to receive
from Recipient reimbursement of Charter’s costs and expenses (including attorneys’ fees)
incurred in connection with any breach or threatened breach by Recipient or its Representatives,
but such reimbursement may only be ordered by a court of competent jurisdiction.
5.Miscellaneous. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements and understandings, oral
and written, with respect to such matters. No failure or delay in exercising any right, power, or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other exercise of any right, power or privilege hereunder. If any part or any
provision of this Agreement shall be deemed to be invalid or unenforceable in any respect, such
part shall be ineffective to the extent of such invalidity only, without in any way affecting the
remaining provisions of this Agreement. No amendment to this Agreement shall be valid unless
it is made in writing and signed by both parties. This Agreement shall inure to the benefit of,
and be binding upon, the parties, their successors and permitted assigns. This Agreement shall
be governed by laws of the State of Nebraska without regard to the choice of law provisions
thereof.
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IN WITNESS WHEREOF, each party has caused this Agreement to be duly executed on its
behalf as of the date set forth above.
CC VI OPERATING, LLC CITY OF GRAND ISLAND, NE
By:By:
Name:Name:
Title:Title:
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City of Grand Island
Tuesday, October 2, 2012
Study Session
Item X2
Discussion Concerning Residency Requirements for City
Department Directors - At the Request of Councilmember Chuck
Haase.
Staff Contact: Robert J. Sivick, City Attorney
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Council Agenda Memo
From:Robert J. Sivick, City Attorney
Meeting:October 2, 2012
Subject:Discussion Concerning Residency Requirements for City
Department Directors
Item #’s:2
Presenter(s): Councilman Chuck Haase
Background
On December 4, 2001 the Grand Island City Council (Council) approved expanding the
area where Department Directors could reside to within ten miles of the City of Grand
Island (City) zoning jurisdiction. Since the City has zoning jurisdiction for two miles
beyond its borders this in effect extended the acceptable area of residency for Directors to
twelve miles beyond the City’s borders. On December 18, 2001 the Council approved
Resolution 2001-314 which among other things incorporated the new residency
requirements for Directors into the employee handbook. That requirement is
memorialized in the City Personnel Rules and Regulations §3.12.
Discussion
Residency requirements for municipal employees have been the subject of litigation
across the country for the last few decades. Generally Courts are prone to strike down
residency requirements that lack a legitimate public purpose related to the operation of
municipal government. The most obvious example of such a legitimate public purpose
would be public safety but would also include public utilities and infrastructure.
The Human Resources Department conducted a survey of residency requirements for
Department Directors in other Nebraska cities and compiled the following data:
RESIDENCY REQUIREMENTS FOR DEPARTMENT DIRECTORS
Hastings No written policy. Strongly recommended
La Vista Only City Administrator & Police Chief
Bellevue Only City Administrator & Assistant City Administrator
Kearney All Directors are required to live within City limits
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Lincoln No residency requirement for Directors
Omaha No residency requirement for Directors
Norfolk No residency requirement for Directors - some positions have a
response time if in public works or public safety
Fremont Residency requirement for City Administrator, Police & Fire Chief
within 20 minutes of city limits and Utility Mgr. has to live within
service area.
Papillion No residency requirements for Directors
Columbus No residency requirements for Directors. Police & Fire Chiefs
follow the 30 minute rule in place for their department members
North Platte No residency requirement for Directors
The Human Resources Department compiled the present residency requirements for City
employees as listed below:
CURRENT RESIDENCY REQUIREMENTS FOR CITY EMPLOYEES
Department Directors: Within 10 miles of the zoning jurisdiction
Emergency Management Employees: Within a 25 mile radius of the City limits
Utilities Department Employees: Residency boundaries of the department
Sworn Police Officers (FOP Contract): Within 35 miles of city limits
Firefighters (IAFF Contract): Within a 35 mile radius of the City limits
Parks & Streets (AFSCME Contract): No residency requirement
IBEW Wastewater: No residency requirement
IBEW Service/Clerical No residency requirement
IBEW Utilities & Finance: Residency Boundaries as established in the
contracts
Non-union: No residency requirement
The Human Resources Department compiled data on the residency of City employees
broken down by Department as listed below:
GI OTHER TOTAL % GI
ADMINISTRATION 4 1 5 80%
BUILDING 9 2 11 82%
EMER MANAGEMENT 17 1 18 94%
FINANCE 28 4 32 88%
FIRE 38 28 66 58%
HUMAN RESOURCES 2 2 4 50%
LEGAL 3 0 3 100%
LIBRARY 26 2 28 93%
PARKS 24 5 29 83%
PLANNING 3 0 3 100%
POLICE 75 18 93 81%
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PUBLIC WORKS 61 13 74 82%
UTILITIES 128 6 134 96%
TOTAL 418 82 500 84%
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Sec. 3.12 RESIDENCY
All Department Directors are required to reside within ten miles of the
zoning jurisdiction. All Emergency Management employees are required to
reside within a twenty-five mile radius of the City of Grand Island. All
Utilities Department employees are required to reside within the residency
boundaries of the department. Residency for police and fire employees are
established by contracts.
Employees that drive City vehicles home and senior management
personnel need to check their department’s Standard Operating
Procedures in reference to residency requirements.
Employees will establish residency within six months after the calendar day
of the start of employment and will maintain residency during the term of
employment. For purposes of these Personnel Rules and Regulations,
residency will mean the employee’s domicile.
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City of Grand Island
Tuesday, October 2, 2012
Study Session
Item X3
Discussion Concerning Proposed Ordinance Prohibiting
Discrimination Based on Sexual Orientation - At the Request of
Councilmember Larry Carney.
Staff Contact: Robert J. Sivick, City Attorney
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Council Agenda Memo
From:Robert J. Sivick, City Attorney
Meeting:October 2, 2012
Subject:Discussion Related to a Possible City Ordinance
Prohibiting Discrimination in Employment, Housing, and
Public Accommodations against Persons based on their
Sexual Orientation
Item #’s:3
Presenter(s): Councilman Larry Carney
Background
Both United States and Nebraska law prohibits discrimination against persons who are
members of protected classes such as race, religion, and ethnic origin. However, neither
the laws of the United States or the State of Nebraska consider sexual orientation to be a
protected class and thus offer protection to persons suffering discrimination as a result of
being gay, lesbian, bisexual, or transgendered (GLBT).
In recent years some States and numerous cities have enacted laws offering such
protection lacking at the Federal or State level. In 2012 two Nebraska cities (Omaha and
Lincoln) have enacted ordinances prohibiting discrimination based on sexual orientation.
Nebraska Attorney General Jon Bruning issued an opinion stating neither City had the
right to expand civil rights protections to additional protected classes without a vote of
the electorate approving such a revision of their City charters. Both the Omaha and
Lincoln City Attorneys rejected the legal reasoning in the Attorney General’s opinion.
Presently the Omaha ordinance is facing possible repeal through referendum and the
Lincoln ordinance has already suffered such a fate.
Discussion
The trend in American law is the expansion of Civil Rights protections. In recent years
these protections have been afforded to the GLBT community either through the
enactment of anti-discrimination laws or the expansion of marriage and adoption rights.
It is debatable if these legal developments are a result of changing societal attitudes or
societal attitudes have changed in response to the legal expansion of civil rights.
Nonetheless, these changes are taking place not only in the legal arena but in
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communities and workplaces. Tolerance of homosexuality has increased over the last
few decades as evidenced by the fact 477 of the Fortune 500 companies have written
company policies prohibiting discrimination based on sexual orientation.
Any proposed ordinance prohibiting discrimination based on sexual orientation will have
to be carefully crafted so as not to have language that is vague, to exempt religious
organizations engaging in constitutionally protected activities, and to consider the
practical effects of the enactment and enforcement of such an ordinance.
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12-45 Introduce: 4-30-12
ORDINANCE NO. _________________
AN ORDINANCE amending Title 11 of the Lincoln Municipal Code, Equal1
Opportunity, and Chapter 2.76 of the Lincoln Municipal Code, the City’s Personnel Rules and2
Regulations, to prohibit discrimination on the basis of sexual orientation or gender identity. 3
WHEREAS, it has long been the policy of the City of Lincoln to encourage and foster4
employment of people in the City on the basis of merit and to prevent discrimination based on5
characteristics that are unrelated to a person’s abilities and productivity. 6
WHEREAS, a person’s sexual orientation and gender identity are not related to his or7
her abilities or productivity in the workforce.8
WHEREAS, it is good public policy to welcome and support business owners who9
employ workers based on their talents and work ethic rather than on the basis of sexual orientation10
or gender identity. 11
WHEREAS, denying equal opportunity for employment due to sexual orientation or12
gender identity is contrary to American principles of freedom and is a burden on the economic and13
cultural growth of the City of Lincoln. 14
WHEREAS, it is the policy of the City of Lincoln to promote the full and equal15
enjoyment of any place of public accommodation without discrimination or segregation.16
BE IT ORDAINED by the City Council of the City of Lincoln, Nebraska:17
Section 1. That Section 11.01.010 of the Lincoln Municipal Code be amended to read18
as follows:19
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11.01.010 Definitions. 1
As used in this title, the following terms shall mean:2
Age shall mean the age of any individual from forty years of age and above.3
Aggrieved person shall mean any person who (1) claims to have been injured by a4
discriminatory housing practice, or (2) believes that such person will be injured by a discriminatory5
housing practice that is about to occur.6
Attorney shall mean the City Attorney or a member of that department's staff.7
Commission shall mean the Commission on Human Rights of the City of Lincoln, Nebraska8
or any members of the Commission who may be assigned by the Commission to hear complaints9
by public hearing proceedings.10
Complainant shall mean the person, including the Commission, who files a complaint under11
this title.12
Conciliation shall mean the attempted resolution of issues raised by a complaint or by the13
investigation of a complaint through informal negotiations involving the aggrieved person, the14
respondent, and the Commission.15
Covered multi-family dwelling shall mean:16
(1) A building consisting of four or more units if such building has one or more17
elevators; and18
(2) Ground-floor units in any other building consisting of four or more units.19
Disability shall mean, with respect to a person:20
(1) A physical or mental impairment which substantially limits one or more of such21
person's major life activities;22
(2) A record of having such an impairment; or23
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(3) Being regarded as having such an impairment.1
Disability shall not include current, illegal use of or addiction to a controlled substance2
as defined by state law. 3
Discriminatory housing practice shall mean an act that is unlawful as provided by Chapter4
11.06.5
Dwelling shall mean any building, structure, or portion thereof or mobile home which is6
occupied as, or designed or intended for occupancy as, a residence for one or more families, and any7
vacant land which is offered for sale or lease for the construction or location of any such building,8
structure, or portion thereof, or mobile home.9
Employee shall mean an individual employed by an employer, or an applicant for10
employment.11
Employer shall mean a person engaged in an industry who has four or more employees for12
each working day in each of twenty or more calendar weeks in the current or preceding calendar13
year, and any agent of such person, but such term does not include (1) the United States government,14
a corporation wholly owned by the government of the United States, or an Indian tribe; or (2) the15
State of Nebraska; or (3) the County of Lancaster; or (4) a bona fide private membership club, other16
than a labor organization, which is exempt from taxation under Section 501(c) of the Internal17
Revenue Code of 1954; or (5) a religious organization.18
Employment agency shall mean any person regularly undertaking with or without19
compensation to procure employees for an employer or to procure for employees opportunities to20
work for an employer and includes an agent of such person.21
Equal Opportunity Officer shall mean the duly appointed Equal Opportunity Officer of the22
City of Lincoln or the designated representative of such person.23
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Familial status shall mean one or more minors being domiciled with: 1
(1) A parent or other person having legal custody of such individual; or2
(2) The designee of a parent or other person having legal custody, with the written3
permission of the parent or other person.4
The protections afforded against discrimination on the basis of familial status shall5
apply to any person who is pregnant or is in the process of securing legal custody of any minor.6
Family shall include a single individual.7
Gender identity shall mean the actual or perceived appearance, expression, identity, or8
behavior of a person as being male or female, whether or not that appearance, expression, identity,9
or behavior is different from that traditionally associated with the person’s designated sex at birth.10
Housing for older persons shall mean:11
(1) Housing provided under any federal, state, or local program that the Secretary of12
Housing and Urban Development or the Commission determines is specifically designed and13
operated to assist elderly persons as defined in the federal, state, or local program; 14
(2) Housing intended for, and solely occupied by, persons sixty-two years of age or15
older; or16
(3) Housing intended and operated for occupancy by at least one person fifty-five17
years of age or older per unit. In determining whether housing qualifies as housing for older persons18
under this subsection, the Commission shall develop regulations which require at least the following19
factors:20
A. The existence of significant facilities and services specifically designed to21
meet the physical or social needs of older persons or, if the provision of such22
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facilities and services is not practicable, that such housing is necessary to1
provide important housing opportunities for older persons;2
B. That at least eighty percent of the units are occupied by at least one person3
fifty-five years of age or older per unit; and4
C. The publication of and adherence to policies and procedures which5
demonstrate an intent by the owner or manager to provide housing for6
persons fifty-five years of age or older.7
Housing shall not fail to meet the requirements of housing for older persons by reason of:8
(i) Persons residing in the housing as of the effective date of this ordinance9
who do not meet the age requirements of (2) or (3) above if succeeding10
occupants of the housing meet the age requirements; or11
(ii) Unoccupied units if the units are reserved for occupancy by persons who12
meet the age requirements.13
Labor organization shall mean any organization which exists wholly or in part for one or14
more of the following purposes: Collective bargaining; dealing with employers concerning15
grievances, terms, or conditions of employment; or of mutual aid or protection in relation to16
employment.17
Person shall include one or more individuals, corporations, partnerships, associations, labor18
organizations, legal representatives, mutual companies, joint stock companies, trusts, unincorporated19
organizations, trustees, trustees in bankruptcy, receivers, and fiduciaries.20
Private membership club shall mean one that is organized and operated exclusively for21
pleasure, recreation, and other nonprofitable purposes, but if any part of its earnings is used to the22
benefit of any private shareholder or member thereof, it shall be deemed not to be a private club.23
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A club which engages in business, such as making its social and recreational facilities available to1
the general public, shall not be deemed to be a private club. Generally, it is the intent of this2
definition to apply to social and recreational clubs which are supported solely by membership fees,3
dues, and assessment.4
Public accommodations shall mean all places or businesses offering or holding out to the5
general public goods, services, privileges, facilities, advantages, and accommodations for the peace,6
comfort, health, welfare, and safety of the general public and such public places providing food,7
shelter, recreation, and amusement including, but not limited to:8
(1) Any inn, hotel, motel, or other establishment which provides lodging to transient9
guests, other than an establishment located within a building which contains not more than five10
rooms for rent or hire and which is actually occupied by the proprietor of such establishment as such11
proprietor's residence;12
(2) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other13
facility principally engaged in selling food for consumption on the premises, including, but not14
limited to, any such facility located on the premises of any retail establishment;15
(3) Any gasoline station, including all facilities located on the premises of such16
station and made available to the patrons thereof;17
(4) Any motion picture house, theater, concert hall, sports arena, stadium, or other18
place of exhibition or entertainment;19
(5) Any public facility owned, operated, or managed by or on behalf of the City of20
Lincoln or any agency thereof, or any public corporation, and any such facility supported in whole21
or in part by public funds; and22
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(6) Any establishment which is physically located within the premises of any1
establishment otherwise covered by this section or within the premises of which is physically located2
any such covered establishment, and which holds itself out as serving patrons of such covered3
establishment.4
Qualified individual with a disability shall mean an individual with a disability who, with5
or without reasonable accommodation, can perform the essential functions of the employment6
position that such individual holds or desires. For the purposes of this title, consideration shall be7
given to the employer's judgment as to what functions of a job are essential, and if an employer has8
prepared a written description before advertising or interviewing applicants for the job, this9
description shall be considered evidence of the essential functions of the job.10
Reasonable accommodation shall include making existing facilities used by employees11
readily accessible to and usable by individuals with disabilities, job-restructuring, part-time or12
modified work schedules, reassignment to a vacant position, acquisition or modification of13
equipment or devices, appropriate adjustment or modification of examinations, training manuals,14
or policies, the provision of qualified readers or interpreters, and other similar accommodations for15
individuals with disabilities. Reasonable accommodation shall not include accommodations which16
the employer can demonstrate require significant difficulty or expense thereby posing an undue17
hardship upon the employer. Factors to be considered in determining whether an accommodation18
would pose an undue hardship shall include:19
(1) The nature and the cost of the accommodation needed under this title;20
(2) The overall financial resources of the facility or facilities involved in the21
provision of the reasonable accommodation, the number of persons employed at such facility, the22
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effect on expenses and resources, or the impact otherwise of such accommodation upon the1
operation of the facility;2
(3) The overall financial resources of the employer, the overall size of the business3
of the employer with respect to the number of its employees, and the number, type, and location of4
its facilities; and5
(4) The type of operation or operations of the employer, including the composition,6
structure, and functions of the work force of such employer, and the geographic separateness and7
administrative or fiscal relationship of the facility or facilities in question to the employer.8
Residential real estate-related transaction, as used in this title, shall mean:9
(1) The making or purchasing of loans or providing other financial assistance (i) for10
purchasing, constructing, improving, repairing, or maintaining a dwelling; or (ii) secured by11
residential real estate.12
(2) The selling, brokering, or appraising of residential real property.13
Respondent shall mean:14
(1) The person or other entity accused in a complaint of an unfair housing practice;15
and16
(2) Any other person or entity identified in the course of an investigation and notified17
as required with respect to respondents so identified under this title. 18
Restrictive covenants shall mean any specification limiting the transfer, rental, or lease of19
any real property because of race, color, religion, sex, sexual orientation, gender identity, disability,20
national origin, familial status, ancestry, age, or marital status.21
Sexual orientation shall mean actual or perceived heterosexuality, homosexuality, or22
bisexuality.23
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Because of sex or on the basis of sex shall include, but not be limited to, because of or on1
the basis of pregnancy, childbirth, or related medical conditions.2
Title shall mean Title 11 of the Lincoln Municipal Code.3
To rent shall include to lease, to sublease, to let, and otherwise to grant for consideration4
the right to occupy the premises not owned by the occupant. 5
Section 2. That Section 11.01.020 of the Lincoln Municipal Code be amended to read6
as follows: 7
11.01.020 Protection, Preservation, and Perpetuation of Constitutional Rights.8
It is the policy of the City of Lincoln to foster equal opportunity to all persons in the City9
regardless of their race, color, religion, sex, sexual orientation, gender identity, disability, national10
origin, familial status, ancestry, age, or marital status. Denying equal access to places of public11
accommodation or equal opportunity for housing or employment because of race, color, religion,12
sex, sexual orientation, gender identity, disability, national origin, familial status, handicap, age,13
ancestry, or marital status is contrary to the principles of freedom and is a burden upon the14
objectives of the aforestated public policy of the City of Lincoln. It is the intent, purpose, and public15
policy of the City of Lincoln to protect, preserve, and perpetuate all constitutional rights, including16
the constitutional right to freely speak, write, and publish on all lawful subjects, including the right17
to make a comprehensive distribution of such printed material, either commercial or noncommercial,18
by using the most effective lawful means or methods.19
Section 3. That Section 11.02.040 of the Lincoln Municipal Code be amended to read20
as follows:21
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11.02.040 Commission on Human Rights; Powers and Duties. 1
The provisions of this title shall be administered by the Commission on Human Rights for2
the City of Lincoln. The City Attorney is granted the authority to enforce this title. In carrying out3
the provisions of this title, the Commission shall act as an advisory body to the Mayor, City Council,4
and Equal Opportunity Officer on all matters within its jurisdiction and shall have the power to:5
(a) Review those actions of the Equal Opportunity Officer as provided by this title, and6
affirm or reverse such actions as may be necessary to further the purposes of this title. If any such7
actions are reversed, the Commission shall then direct the Equal Opportunity Officer in appropriate8
courses of action to further such purposes.9
(b) Institute actions to educate the public as to unlawful discriminatory practices and the10
enforcement measures provided in this title for the prevention and punishment of such practices.11
(c) Enforce the provisions of this title by appropriate measures, including the requiring of12
affirmative action on the part of violators of such provisions in order to correct such violations, and13
by ordering such violators to cease and desist from doing any act in violation of this title.14
(d) Seek to eliminate and prevent discrimination in places of public accommodation,15
housing, and employment as provided in this title on the basis of race, color, religion, sex, sexual16
orientation, gender identity, disability, national origin, familial status, ancestry, age, or marital17
status.18
(e) Effectuate the purposes of this title by conference, conciliation, and persuasion so that19
persons may be guaranteed their civil rights and goodwill may be fostered.20
(f) Formulate policies to effectuate the purposes of this title and to make recommendations21
to agencies and officers of the city government in aid of such policies and purposes, and to advocate22
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for the rights of women, minorities, and disabled individuals and promote causes in the name of the1
Commission before agencies and legislative bodies on matters of human rights.2
(g) Designate one or more members of the Commission, or the Equal Opportunity Officer,3
or the Equal Opportunity Officer's staff and such other persons who may be retained for such4
purpose to conduct investigations of any complaint alleging discrimination because of race, color,5
religion, sex, sexual orientation, gender identity, disability, national origin, familial status, ancestry,6
age, or marital status, and in aid of such investigation, subpoena records or witnesses and compel7
their attendance, and to attempt to resolve such complaint by conference, conciliation, or persuasion8
and conduct such conciliation meetings and conferences as are deemed necessary to resolve a9
particular complaint.10
(h) Determine whether reasonable cause exists to credit the allegations of a complaint;11
provided, that reasonable cause may be determined by any Commission committee of at least three12
commissioners or a Commission-appointed hearing officer, and such committee's or hearing officer's13
actions shall be deemed to be the action of the Commission.14
(i) Determine that a complaint cannot be resolved by conference, conciliation, or15
persuasion.16
(j) Dismiss complaints when it is determined there is not reasonable cause to credit the17
allegations of a complaint, or when a complainant requests the withdrawal of such complaint.18
In the event that a complainant cannot be reasonably located, or circumstances are such19
that the complainant's complaint cannot be finally disposed of, the Commission shall have authority20
to administratively close such investigation of such complaint. If no further action is taken on such21
claim for a period of four years from the date of closure, the complaint shall then be deemed22
dismissed without prejudice.23
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(k) Hold hearings in aid thereof, subpoena witnesses and compel their attendance, and1
administer oaths, take testimony of any person under oath and in connection therewith require for2
examination any books or papers relating to any matter under investigation or in question before the3
Commission.4
(l) Issue publications and the results of studies and research which will tend to promote5
goodwill and minimize or eliminate discrimination because of race, color, religion, sex, sexual6
orientation, gender identity, disability, national origin, familial status, ancestry, age, or marital7
status.8
(m) Recommend damages, based on actual pecuniary loss or such damages as the9
Commission or Commission-appointed hearing officer may determine should be assessed against10
a respondent violating the provisions of this title. Additionally, the Commission may require such11
other remedial measures to accomplish the purposes of this title as the Commission may deem12
necessary. Such remedial measures may include directing the display of equal access to public13
accommodations or housing posters, equal employment posters, and such other informational14
materials as the Commission may deem appropriate.15
(n) The Commission may file in a like manner a verified complaint of an alleged unfair16
discriminatory practice whenever there is reason to believe an unfair discriminatory practice has17
occurred, but this complaint must contain a bill of particulars setting out dates, names of witnesses,18
and the facts upon which the complaint if based. 19
(o) The Commission may, after the filing of a complaint, request the City Attorney to20
institute appropriate legal proceedings to protect the rights and privileges of the complainant21
provided by this title. 22
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Section 4. That Title 11 of the Lincoln Municipal Code be amended so that the section1
numbered 11.04.010 reads as follows:2
11.04.010 Full and Equal Enjoyment of Place of Public Accommodation.3
All persons within the City of Lincoln shall be entitled to a full and equal enjoyment of any4
place of public accommodation, as defined in Section 11.01.010 without discrimination or5
segregation on the grounds of race, color, sex, sexual orientation, gender identity, religion, national6
origin, ancestry, disability, or marital status. Every totally or partially blind person shall have the7
right to be accompanied by a dog guide, especially trained for the purpose, in any place of public8
accommodation without being required to pay an extra charge for the dog guide.9
Section 5. That Section 11.04.030 of the Lincoln Municipal Code be amended to read10
as follows:11
11.04.030 Refusal, Withholding From, or Denial of, Public Accommodations; Unlawful.12
Any person who directly or indirectly refuses, withholds from, denies or attempts to13
refuse, withhold, or deny to any person the accommodations, advantages, facilities, services, or14
privileges otherwise available in a place of public accommodation on the basis of race, color, sex,15
sexual orientation, gender identity, religion, national origin, ancestry, disability, or marital status16
shall be guilty of discriminatory practice and shall be subject to the penalties set forth in this title.17
Section 6. That Section 11.04.060 of the Lincoln Municipal Code be amended to read18
as follows:19
11.04.060 Religious Organization Exempt; Conditions.20
Any place of public accommodation owned by or operated on behalf of a religious21
corporation, association, or society which gives preference in the use of such place to members of22
the same faith as that of the administering body shall not be guilty of discriminatory practice. If a23
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place of public accommodation owned by or operated on behalf of a religious organization is made1
available for use only to members of the same faith as that of the administering body, the provisions2
concerning discriminatory practices that relate to sexual orientation and gender identity shall not3
apply.4
Section 7. That Section 11.06.020 of the Lincoln Municipal Code be amended to read5
as follows:6
11.06.020 Unlawful Acts Enumerated.7
Except as exempted by Section 11.06.070, it shall be unlawful to:8
(a) Refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for9
the sale or rental of, or otherwise make unavailable or deny, or to refuse to show, or to refuse to10
receive and transmit an offer for, a dwelling to any person because of race, color, religion, sex,11
sexual orientation, gender identity, disability, national origin, familial status, handicap, ancestry, or12
marital status;13
(b) Discriminate against any person in the terms, conditions, privileges of sale or rental of14
a dwelling, or in the provision of service or facilities in connection therewith, because of race, color,15
religion, sex, sexual orientation, gender identity, disability, national origin, familial status, handicap,16
ancestry, or marital status;17
(c) Make, print, or publish, or cause to be made, printed, or published, any notice,18
statement, or advertisement with respect to the sale or rental of a dwelling that indicates any19
preference, limitation, or discrimination based on race, color, religion, sex, sexual orientation,20
gender identity, disability, national origin, familial status, handicap, ancestry, or marital status, or21
an intention to make any such preference, limitation, or discrimination;22
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(d) Represent to any person because of race, color, religion, sex, sexual orientation, gender1
identity, disability, national origin, familial status, handicap, ancestry, or marital status, that any2
dwelling is not available for inspection, sale, or rental when such dwelling is, in fact, so available;3
(e) Cause to be made any written or oral inquiry or record concerning the race, color,4
religion, sex, sexual orientation, gender identity, disability, national origin, familial status, handicap,5
ancestry, or marital status of a person seeking to purchase, rent, or lease any housing;6
(f) Include in any transfer, sale, rental or lease of housing any unlawful restrictive7
covenants, or to honor or exercise or attempt to honor or exercise any unlawful restrictive covenants8
pertaining to housing;9
(g) Discharge or demote an employee or agent or discriminate in the compensation of such10
employee or agent because of such employee's or agent's obedience to the provisions of this chapter;11
(h) Induce or attempt to induce, for profit, any person to sell or rent any dwelling by12
representation regarding the entry or prospective entry into the neighborhood of a person or persons13
of a particular race, color, religion, sex, sexual orientation, gender identity, disability, national14
origin, familial status, handicap, ancestry, or marital status;15
(i) Discriminate in the sale or rental of or otherwise make unavailable or deny a dwelling16
to any buyer or renter because of a handicap of:17
(1) The buyer or renter;18
(2) Any person associated with the buyer or renter; or19
(3) A person residing in or intending to reside in the dwelling after it is so sold,20
rented, or made available.21
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(j) Discriminate against any person in the terms, conditions, or privileges of sale or rental1
of a dwelling or in the provision of services or facilities in connection with a dwelling because of2
a handicap of:3
(1) Such person;4
(2) Any person associated with such person; or5
(3) A person residing in or intending to reside in the dwelling after it is so sold,6
rented, or made available.7
Section 8. That Section 11.06.050 of the Lincoln Municipal Code be amended to read8
as follows:9
11.06.050 Discriminatory Denial of Loan; Unlawful.10
It shall be unlawful for any bank, building and loan association, insurance company, or other11
corporation, association, firm, or enterprise whose business consists in whole or in part in the12
making of commercial real estate loans within the city, to deny a loan or other financial assistance13
to a person applying therefore for the purpose of purchasing, constructing, making of commercial14
real estate loans within the city, to deny a loan or other financial assistance to a person applying15
therefore for the purpose of purchasing, constructing, improving, repairing, or maintaining a16
dwelling, or to discriminate against a person in the fixing of the amount, interest rate, duration, or17
other terms or conditions of such loan or other financial assistance because of race, color, religion,18
sex, sexual orientation, gender identity, national origin, familial status, handicap, disability, ancestry,19
or marital status of such person or of any person associated with such person in connection with such20
loan or other financial assistance for the purposes of such loan or other financial assistance, or of21
the present or prospective owners, lessees, tenants, or occupants of the dwelling or dwellings in22
relation to which such loan or other financial assistance is to be made or given; provided, that23
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nothing contained in this section shall impair the scope or effectiveness of the exceptions contained1
in Section 11.06.070.2
Section 9. That Section 11.06.060 of the Lincoln Municipal Code be amended to read3
as follows:4
11.06.060 Discrimination in Multiple Listing Service or Other Real Estate Service5
Organization; Discriminatory Refusal of Access or Membership; Unlawful.6
It shall be unlawful to deny any person access to or membership or participation in any7
multiple listing service, real estate brokers' organization, or other service, organization, or facility8
relating to the business of selling or renting dwellings, or to participate or discriminate against any9
person in the terms or conditions of such access, membership, or participation on account of race,10
color, religion, sex, sexual orientation, gender identity, national origin, disability, ancestry, familial11
status, or marital status. 12
Section 10. That Section 11.06.065 of the Lincoln Municipal Code be amended to13
read as follows:14
11.06.065 Residential Real Estate Transactions; Discriminatory Refusal to Make Available15
Transactions.16
(a) It shall be unlawful for any person or other entity whose business includes engaging17
in18
transactions related to residential real estate to discriminate against any person in making available19
such a transaction or in the terms or condition of such a transaction because of race, color, religion,20
sex, sexual orientation, gender identity, familial status, national origin, marital status, disability, or21
ancestry.22
(b) For purposes of this section, transaction related to residential real estate shall mean any23
of the following:24
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(1) The making or purchasing of loans or providing other financial assistance:1
(i) For purchasing, constructing, improving, repairing, or maintaining a2
dwelling; or3
(ii) Secured by residential real estate; or4
(2) The selling, brokering, or appraising of residential real property.5
(c) Nothing in this section shall prohibit a person engaged in the business of furnishing6
appraisals of real property from taking into consideration factors other than race, color, religion,7
national origin, ancestry, sex, sexual orientation, gender identity, disability, marital status, or8
familial status.9
Section 11. That Section 11.08.010 of the Lincoln Municipal Code be amended to read10
as follows: 11
11.08.010 Purpose.12
It is the policy of the City of Lincoln to foster employment of all employable persons in the13
city on the basis of merit regardless of their race, color, religion, sex, sexual orientation, gender14
identity, disability, national origin, ancestry, age, or marital status, and to safeguard their right to15
obtain and hold employment without discrimination because of their race, color, religion, sex, sexual16
orientation, gender identity, disability, national origin, ancestry, age, or marital status.17
Denying equal opportunity for employment because of race, color, religion, sex, sexual18
orientation, gender identity, disability, national origin, ancestry, age, or marital status is contrary to19
the principles of freedom and is a burden on the objectives of the public policy of the City of20
Lincoln.21
Section 12. That Section 11.08.030 of the Lincoln Municipal Code be amended to read22
as follows:23
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11.08.030 Exceptions.1
This chapter shall not apply to:2
(a) A religious corporation, association, or society with respect to the employment3
ofindividuals of a particular religion to perform work connected with the carrying on by such4
corporation, association, or society of its religious activities, or5
(b) A religious corporation, association, or society with respect to the employment of6
individuals based on sexual orientation or gender identity to perform work connected with the7
carrying on by such corporation, association, or society of its religious activities, or8
(c) A school, college, university, or other educational institution with respect to the9
employment of individuals of a particular religion if the school, college, university, or other10
educational institution is, in whole or substantial part, owned, supported, controlled, or managed by11
a particular religion, or by a particular religious organization and if the curriculum of the school,12
college, university, or other educational institution is directed toward the propagation of a particular13
religion and the choice of employees is necessary to promote the religious principles for which it14
is established or maintained, or15
(bd) The employment of any individual by:16
(1) their parent, grandparent, spouse, child, or grandchild, or17
(2) in the domestic service of any person.18
Section 13. That Section 11.08.040 of the Lincoln Municipal Code be amended to read19
as follows:20
11.08.040 Unlawful Employment Practices for an Employer.21
It shall be an unlawful employment practice for an employer:22
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(a) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate1
against any individual with respect to such individual's compensation, terms, advancement potential,2
conditions, or privileges of employment because of such individual's race, color, religion, sex, sexual3
orientation, gender identity, disability, national origin, ancestry, age, or marital status; provided,4
however, that this section shall not be interpreted to require an employer to provide family benefits5
to same sex partners;6
(b) To limit, segregate, or classify employees in any way which would deprive or tend to7
deprive any individual of employment opportunities or otherwise adversely affect their status as an8
employee because of such individual's race, color, religion, sex, sexual orientation, gender identity,9
disability, national origin, ancestry, age, or marital status.10
Section 14. That Section 11.08.050 of the Lincoln Municipal Code be amended to read11
as follows: 12
11.08.050 Unlawful Employment Practice for Employment Agency.13
It shall be an unlawful employment practice for an employment agency to fail or refuse to14
refer for employment or otherwise to discriminate against any individual because of race, color,15
religion, sex, sexual orientation, gender identity, national origin, ancestry, disability, age, or marital16
status, or to classify or refer for employment any individual on the basis of race, color, religion, sex,17
sexual orientation, gender identity, disability, national origin, ancestry, age, or marital status. 18
Section 15. That Section 11.08.060 of the Lincoln Municipal Code be amended to read19
as follows: 20
11.08.060 Unlawful Employment Practices for Labor Organization.21
It shall be an unlawful employment practice for a labor organization:22
(a) To exclude or to expel from its membership or otherwise to discriminate against any23
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individual because of race, color, religion, sex, sexual orientation, gender identity, disability,1
national origin, ancestry, age, or marital status; or2
(b) To limit, segregate, or classify its membership, or to classify or fail or refuse to refer3
for employment any individual in any way which would deprive or tend to deprive any individual4
of employment opportunities, or would limit such employment opportunities or otherwise adversely5
affect their status as an employee or as an applicant for employment because of such individual's6
race, color, religion, sex, sexual orientation, gender identity, disability, national origin, ancestry, age,7
or marital status; or8
(c) Cause or attempt to cause an employer to discriminate against any individual in9
violation of this chapter.10
Section 16. That Section 11.08.070 of the Lincoln Municipal Code be amended to read11
as follows:12
11.08.070 Unlawful Employment Practice; Controlling Apprenticeship or Training13
Program.14
It shall be an unlawful employment practice for any employer, labor organization, or joint15
labor management committee controlling apprenticeship or other training or retraining, including16
on-the-job training programs, to discriminate against any individual because of race, color, religion,17
sex, sexual orientation, gender identity, disability, national origin, ancestry, age, or marital status18
in admission to or employment in any program established to provide apprenticeship or other19
training.20
Section 17. That Section 11.08.100 of the Lincoln Municipal Code be amended to21
read as follows:22
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11.08.100 Standards for Compensation Permitted; When.1
(a) Notwithstanding any other provision of this chapter, it shall not be an unlawful2
employment practice for an employer to apply different standards of compensation, for different3
terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or4
a system which measures earnings by quantity or quality of production or to employees who work5
in different locations, if the employer can show that such differences are not the result of6
discrimination because of race, color, religion, sex, sexual orientation, gender identity, disability,7
national origin, ancestry, age, or marital status; nor shall it be unlawful employment practice for an8
employer to give and to act upon the results of any validated ability tests if the employer can show9
that such test, its administration, or action upon the result is not designed, intended, or used to10
discriminate because of race, color, religion, sex, sexual orientation, gender identity, disability,11
national origin, ancestry, age, or marital status and are reasonably related to such employment.12
(b) It shall not be an unlawful employment practice for an employer, employment agency,13
labor organization, or joint labor-management committee to deny privileges of employment when14
the nature and extent of a disability reasonably precludes the performance of the particular15
employment.16
(c) Women affected by pregnancy, childbirth, or related medical conditions shall be treated17
the same for all employment-related purposes, including receipt of employee benefits, as other18
persons not so affected but similar in their ability or inability to work, and nothing in this section19
shall be interpreted to provide otherwise. This section shall not require an employer to provide20
employee benefits for abortion except when medical complications have arisen from an abortion.21
Section 18. That Section 11.08.110 of the Lincoln Municipal Code be amended to read22
as follows:23
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11.08.110 Preferential Treatment Not to be Granted on Account of Existing Numbers or1
Percentage Imbalance.2
Nothing contained in this chapter shall be interpreted to require any employer, employment3
agency, labor organization or joint labor-management committee subject to this chapter to grant4
preferential treatment to any individual or to any group because of the race, color, religion, sex,5
sexual orientation, gender identify, national origin, ancestry, age, or marital status of such6
individual or group, on account of an imbalance which may exist with respect to the total number7
or percentage of persons of any race, color, religion, sex, sexual orientation, gender identity, national8
origin, ancestry, age, or marital status in the city, or in the available work force in the city.9
Section 19. That Section 11.08.070 of the Lincoln Municipal Code be amended to read10
as follows:11
11.08.130 Notice of Employment; Preference or Discrimination Because of Race, Color,12
Religion, Sex, Sexual Orientation, Gender Identity, Disability, National Origin,13
Ancestry, Age, or Marital Status; Unlawful.14
It shall be an unlawful employment practice for an employer, labor organization, or15
employment agency to print or publish or cause to be printed or published any notice or16
advertisement relating to employment by such an employer or membership in, or any classification17
or referral for employment by such a labor organization, or relating to any classification or referral18
for employment by such an employment agency indicating any preference, limitation, specification,19
or discrimination based on race, color, religion, sex, sexual orientation, gender identity, disability,20
national origin, ancestry, age, or marital status, except that such a notice or advertisement may21
indicate a preference, limitation, specification, or discrimination based on religion, sex or national22
origin, when religion, sex, or national origin is a bona fide occupational qualification for23
employment.24
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Section 20. That Section 11.08.160 of the Lincoln Municipal Code be amended to read1
as follows:2
11.08.160 Contracts with the City of Lincoln; Requirements.3
Every contract to which the City of Lincoln or any of its agencies is a party shall contain a4
provision requiring the contractor and subcontractors not to discriminate against any employee or5
applicant for employment to be employed in the performance of such contract with respect to hire,6
tenure, terms, conditions, or privileges of employment because of race, color, religion, sex, sexual7
orientation, gender identity, disability, national origin, ancestry, age, or marital status.8
Section 21. That Section 2.76.280 of the Lincoln Municipal Code be amended to read9
as follows:10
2.76.280 Discrimination.11
(a) No action affecting the employment status of an employee or applicant for a position12
in the city service, including appointment, promotion, demotion, disciplinary action, suspension,13
dismissal, or layoff shall be taken or withheld by reason of the race, color, religion, sex, sexual14
orientation, gender identity, disability, national origin, age, marital status, or political opinions or15
affiliations, except that no person shall be employed or retained in the city service who advocates16
or belongs to an organization that advocates the overthrow or change of our government by force17
or violence.18
(b) Any reference made in this Chapter 2.76 of the Lincoln Municipal Code to the terms19
he, she, his, her, or any similar term shall be interpreted in the generic and shall imply no restriction20
or other action because of the sex of the employee or applicant.21
Section 22. That Sections 11.01.010, 11.01.020, 11.02.040, 11.04.010, 11.04.030,22
11.04.060, 11.06.020, 11.06.050, 11.06.060, 11.06.065, 11.08.010, 11.08.030, 11.08.040, 11.08.050,23
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11.08.060, 11.08.070, 11.08.100,11.08.110, 11.08.130, 11.08.160, and 2.76.280 of the Lincoln1
Municipal Code as hitherto existing be and the same are hereby repealed.2
Section 23. That this ordinance shall take effect and be in force from and after passage3
and publication in one issue of a daily or weekly newspaper of general circulation in the City,4
according to law.5
Introduced by:
____________________________________
Approved as to Form & Legality:
_________________________________
City Attorney
Approved this ___ day of _____________, 2012:
_______________________________________
Mayor
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§ 20-113. Protection of civil rights; incorporated cities; ordinances; county; resolutions; powers;
jurisdiction; revocation of liquor license, when.
Nebraska
Chapter 20. Civil Rights
Article 1. Individual Rights
(a). General Provisions
Current through the 2012 legislative session
§ 20-113. Protection of civil rights; incorporated cities; ordinances; county; resolutions;
powers; jurisdiction; revocation of liquor license, when
Any incorporated city may enact ordinances and any county may adopt resolutions which are
substantially equivalent to the Age Discrimination in Employment Act, the Nebraska Fair
Employment Practice Act, the Nebraska Fair Housing Act, and sections 20-126 to 20-143 and 48-
1219 to 48-1227 or which are more comprehensive than such acts and sections in the protection
of civil rights. No such ordinance or resolution shall place a duty or liability on any person, other
than an employer, employment agency, or labor organization, for acts similar to those prohibited
by section 48-1115. Such ordinance or resolution may include authority for a local agency to seek
an award of damages or other equitable relief on behalf of the complainant by the filing of a
petition in the district court in the county with appropriate jurisdiction. The local agency shall have
within its authority jurisdiction substantially equivalent to or more comprehensive than the Equal
Opportunity Commission or other enforcement agencies provided under such acts and sections
and shall have authority to order backpay and other equitable relief or to enforce such orders or
relief in the district court with appropriate jurisdiction. Certified copies of such ordinances or
resolutions shall be transmitted to the commission. When the commission determines that any
such city or county has enacted an ordinance or adopted a resolution that is substantially
equivalent to such acts and sections or is more comprehensive than such acts and sections in the
protection of civil rights and has established a local agency to administer such ordinance or
resolution, the commission may thereafter refer all complaints arising in such city or county to the
appropriate local agency. All complaints arising within a city shall be referred to the appropriate
agency in such city when both the city and the county in which the city is located have established
agencies pursuant to this section. When the commission refers a complaint to a local agency, it
shall take no further action on such complaint if the local agency proceeds promptly to handle
such complaint pursuant to the local ordinance or resolution. If the commission determines that a
local agency is not handling a complaint with reasonable promptness or that the protection of the
rights of the parties or the interests of justice require such action, the commission may regain
Grand Island Study Session - 10/2/2012 Page 89 / 98
jurisdiction of the complaint and proceed to handle it in the same manner as other complaints
which are not referred to local agencies. In cases of conflict between this section and section 20-
332, for complaints subject to the Nebraska Fair Housing Act, section 20-332 shall control.
Any club which has been issued a license by the Nebraska Liquor Control Commission to sell,
serve, or dispense alcoholic liquor shall have that license revoked if the club discriminates
because of race, color, religion, sex, familial status as defined in section 20-311, handicap as
defined in section 20-313, or national origin in the sale, serving, or dispensing of alcoholic liquor to
any person who is a guest of a member of such club. The procedure for revocation shall be as
prescribed in sections 53-134.04, 53-1,115, and 53-1,116.
Cite as Neb. Rev. Stat. § 20-113
Source:
Laws 1969, c. 120, § 9, p. 544; Laws 1974, LB 681, § 1; Laws 1979, LB 438, § 2; Laws 1991, LB 344, § 1; Laws
1991, LB 825, § 46; Laws 2007, LB265, § 2.
Cross References:
Age Discrimination in Employment Act, see section 48-1001.
Nebraska Fair Employment Practice Act, see section 48-1125.
Nebraska Fair Housing Act, see section 20-301.
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